Bates v. Tymason

By the Court, Nelson, J. The deed from the defendant to May conveys a certain parcel of land, known and distinguished as the farm or subdivision No. one of lot No. 60,and such subdivisions describedasbeginningai thesouth-east corner of the said lot No. 60, in the line of Lindsey and Rose-boom’s tract, and running thence, See. The whole question turns upon the location of this comer,the starting point; and the only difficulty attending it grows out of the contradictory terms used in the deed when applied to the objects therein designated. The south-east corner of lot No. 60 is well ascertained point on the ground,but it does not correspond with the residue of the description, viz. “ in the line of Lindsey and Roseboom’s tract.” The south-east corner is five chains and ninetylinks south of the line of Lindsey and Roseboom’s tract. The question then arises which part of the description shall [304] control, according to the evidence m the case tested by legal . . , 0 principles i It is clear,had ¡he patentees given the deed, we would have been bound to consider the south-east corner of No. 60 as the controlling description. Having surveyed the lot, or caused it to be surveyed, it would not have been permitted to them to allege that a mistake had occurred in running the south line of the lot, and fixing' the south-east corner, and thus escape from liability to their grantee by resorting to the residue of the description, which was chiefly imaginary. The actual location, that is the ground lines and corners, would, as to them, have been conclusive. Any other construction would be a gross fraud upon the purchaser, as he had a right to look to the actual location or ground lines of the lot, and to believe, from the description in the deed, that such lines were designated and intended as the boundaries of the lot. 8 Wendell This view of the case is strictly applicable also to conveyances by the like description executed by an assignee of the patentees, because every reason which upholds it, exists with equal force to him; and peculiarly does it apply to the defendant in this case, as it appears that his deed was obtained from the heirs and devisees of one of the patentees. Besides, his remedy upon his deed, according to the above view, would be perfect, in case of an eviction, provided the deed contained the proper covenants. It is manifest, from the evidence, that an actual location of lot No. 60 was made, by marking lines and establishing comers, previous to the deed from the heirs and devisees to the defendant; and it is proved that such corners and lines existed, and were distinctly to be seen when the defendant conveyed to May. There is another aspect of this point of the case, which also I consider conclusive against the defendant. When the defendant conveyed to May, and long after thafitime, the south line of No. 60, as possessed by May, was the reputed north line of Lindsey and Roseboom’s tract—so understood and believed by the occupants on both patents, and by the defendant himself. Now, coupling this fact with the description in the deed, and there is no discrepancy or difficulty in it, because the south line of No. 60, as marked on the ground, was at [305] the time believed by the grantor hinnelf to be the north line of Lindsey and Roseboom’s tract, and it probably, for that reason, was mentioned to identify more perfectly the south line and south-east corner of lot No. 60. It is auxiliary to the first and principle description, and should be construed in order to effectuate the intent of the parties, in reference to the division lines and actual localities at the time of the conveyance ; not to what would have been those division lines, had they been ascertained by an accurate survey. A previo us actual location by the grantor, either by occupancy or marking corners and ground lines, should at least as to him be decisive where the description of the premises in his deed is equivocal ; and where a line is referred to by way of description, one existing in fact, known, and undisputed, should prevail over an imaginary line, resting only in contemplation of law, although the latter be the true line. All grants are supposed to be made upon an actual view of the premises by the parties ; and for this, among other reasons, natural or artificial objects control courses and distances given in a deed. 8 Wendell, 190. The south-east corner of No. 60. being thus ascertained and settled, the whole case is disposed of; the parcel from which the plaintiff was evicted was included in the deed and is of course within the covenants concerning the title. It is true, that starting at the corner of No. 60, as pointed out by the defendant, and following the courses and distances given in the deed, the line coming down the west side of the lot would stop short of the distance given for it, because lot No. 59 rested upon the true north line of Lindsey and Rose-boom’s tract, the line of that tract having there been actually run and marked. But this difficulty is not sufficiently stubborn to control the decisive testimony as to the place of beginning. When one of two descriptions must give way, and that such must be the case here there can be no doubt, it is impossible to hesitate, if the view before taken be sound, in determining which of the descriptions in this deed shall yield. As was said by Mr. Justice Sutherland, when this case was under consideration upon a former occasion, “When the place of beginning given in the deed is certain, orean be clearly ascer [306] ta™e<* ^y Pr00í the location must be made by commencing at such corner, although in consequence thereof the location cannot be made to correspond with all the subsequent courses all(^ distances in the grant,” citing 5 Wendell, 142, and 8 id. 183. It may well be inferred from the testimony, that when lot No. 60. was subdivided in 1794, the subdivision (which must have been made under the direction of the patentees or their heirs or devisees) was made upon the assumption that the line located by the parties was the true south line of the lot. The farm, or subdivision No. one, described as the southerly moiety or half part of the lot would otherwise fall short upwards of 20 acres of its proper complement. According to the line assumed as the true line, the division was nearly equal. It was objected on the trial that May was an incompetent witness. He was the immediate grantee of the defendant, and conveyed to Hammond, with warranty, who conveyed to Phenis, and Phenis to the plaintiff. Previous to the trial, Hammond, Phenis and the plaintiff released May from all claims to which they might be entitled for damages, in consequence of the breach of the covenants in his deed to Hammond. These releases divested him of all interest in the subject matter of this suit. He therefore was not an incompetent witness on the ground of interest; he stood in the same relation to the parties to the suit as he would have done had his deed to Hammond merely contained a release of his title to the premises, or it had been what is commonly called a quit claim deed. It was also objected that the declarations and acts of the defendant, at the time when May was about to make his purchase, ought not to have been received in evidence. The important fact testified to by May was, that the defendant, at or about the time of his purchase, showed him the line then known as the mirth line of Lindsey and RoseboonHs tract, which line it was subsequently ascertained was'.five chains and ninety li?iks south ofthetrueline. We think this testimony was not only competent,buthighlyinportant,asitshowswhat line thepartieshad in view when they speak in the deed of the north line of Lind [307] sey and Roseboom’s tract. The judge submitted the question of the credibility of the witness to the jury. The objection, therefore, to his testimony, if it amounts to any thing, is connected with, and makes a part of the general objection, that no parol testimony of location, under the conveyances given in evidence in the cause ought to havé been admitted&emdash;an objection which we cannot deem it necessary to discuss, further than has been done in the general view taken of the questions arising in this case. Upon the whole, after a very careful consideration of the case, and the principles applicable to it, we are of opinion that the plaintiff was entitled to recover, and that the nonsuit ought to be set aside, and a new trial granted. New trial granted.