Jackson ex dem. Rogers v. Clark

Spencer, J. delivered the opinion of the court. The rules which govern the construction of grants have been settled with the greatest wisdom and accuracy. The following principles will govern the construction of this deed. Such construction is to be given as will give effect to the intention of the parties, if the words they employ will admit of it; ut res magis valeat quam, pereat. If there are certain particulars once sufficiently ascertained, which designate the thing intended to be granted, the addition of a circumstance, false or mistaken, will not frustrate the grant; as in Blague v. Gould, (Cro. Car. 447.473.) the-re was a devise of a house, called the corner house in Andover, in the tenure of B. and H., whereas it was in the tenure of B. and N., the devisor having a house thereto near adjoining in the tenure of H. and it was held, that the corner house in the tenure of B. and N. passed, for that the devise sufficiently as [224] certained the thing, by the words “ corner house;” and the addition of the tenure was surplusage. But when the description of the estate intended to be conveyed includes several particulars, all of which are necessary to ascertain the estate to be conveyed, no estate will pass, except such as will agree to every description. (4 Tyng’s Mass. Rep. 205. 3 Atk. 9. Dyer, 50.) Thus,if a man grant all his estate in his own occupation in the town of W. no estate can pass except what is in his own occupation, and is also situate in that town. Testing the present case by these rules, the deed is operative, and will pass the lot in question, though it does not lie in the twelfth general allotment of the patent ; the description of the premises by lot No. 1. of the smaller lots into which lot No. 3. of the subdivision of lot No. 10. had been divided, sufficiently designates the lot intended to be granted, and the addition of the general allotment, which is unquestionably the addition of a false or mistaken circumstance, cannot vitiate what was before certain, and frustrate the grant. In addition to the certainty already mentioned, the courses and distances of the lot for which the plaintiff sues, precisely correspond with those given by the deed, and a hemlock tree marked 2. and 3. and rec.ognised in the deed as the. north-west corner of lot No.-2., and as standing in the; easterly bounds of lot No. 9. of the said allotment, is in fact thus situated; and also two monuments of stakes and stones, and the quantity given by the deed, are all found to concur with respect to the lot in question. It appears from the evidence, that there was a lot No. 10. in the twelfth allotment of the Kayaderosseras patent, but that it never had been subdivided, and consequently it cannot be that the lot in question lies in that general allotment. It does riot appear, and however the fact may be, we cannot travel out of the case, that there is any other general allotment which has been subdivided in such manner as to correspond >vith the descriptiqn in [225] the deed, in all but the general allotment. The insertion of the words “ with a dwelling-house thereon,” appears also to have been a mistake of the scrivener; but admitting that parol evidence coul(d not be received to show the mistake, it was, at most, a false circumstance, and cannot control the other description in thé deed. As to the other point, I can perceive no objection to the postponement of a sale under a mortgage, on the day and at the place of sale, provided there is the same notice given which the act requires in the first instance ; I mean with respect to the publication in the paper, and the notice on the door of the court house. The six months’ notice is not solely for the purpose of giving notoriety as to the time and place of sale; it was intended to give the mortgagor, in addition to that, an opportunity to raise the money. In analogy to the constant practice of sheriffs’ postponing sales, without giving the six weeks’ notice at first required, and which has not been questioned, I should say that a postponement with the restrictions I have mentioned, might be made. But in this case it is admitted that the sale was made on the 12th of August, 1806, the day first appointed in the notice. On the 16th of June, 1806, a postpone., ment underneath the original notice was begun to be published in the newspaper, and continued until the 7th of August, after which both were omitted. The postponement was ■ in these words : “ Note, the sale of the above property is postponed to Wednesday, the 3d day of September next. James Rogers.” Of this postponement, no notice was given on the door of the court house, and it was so far disregarded, that the sale took place according to the original notice. Whether there could be a postponement before the day of sale, unless upon a six months’ notice, as the act directs, is one question; but it is a different question» [226] whether, after a public notice of a postponement by the mortgagee, he could proceed to sell at the time first appointed, disregarding wholly the postponement. If this was' a sale by a sheriff, the law would protect the purchaser, and hold the sale valid; but in case of an insufficient notice, it would punish the officer. In this case, the regularity of the sale is to be made out as a part of the purchaser’s title, and if irregular, he takes nothing by his deed. In my opinion, the sale is irregular and void; the mortgagee, after publicly postponing the sale, which was a thing wholly under his control, was bound by it, and could not so far disregard it, as to proceed on the original notice. If the contrary position should be upheld, it would enable mortgagees to commit frauds, by selling, after they .had, by their own acts, lulled the mortgagor into security. For these reasons, I am of opinion, 1. that the premises did pass by the mortgage ; and, 2. that the sale Under it is net valid. Judgment for the plaintiff.