Hannum v. Kingsley

Gbay, J. The deed of February 1, 1838, under which the tenant claims title, first clearly describes all the boundaries of [361] “ one piece of land lying the south side of the county road,” on both sides of the river, bounded by Cole’s land on the west, by a definite line on the south, and by Bartlett’s land on the east. It then adds “ all the land situate and lying north of the road aforesaid, bounded north of the heirs of Matthew Clark’s land, and west on ” another road distinctly identified. Upon applying the deed to the land as shown on the plan, we can have no doubt that, taking the whole deed together, the words “ bounded n-wth of the heirs of Matthew Clark’s land ” define the northern boundary of the premises granted. This is so obviously the only construction which will make the whole description coherent, that we must, if necessary, hold the word “ of,” in this clause, to have been used in its obsolete, but perfectly grammatical, meaning of “by,” as in the familiar examples — “ seen of men ” —'“ led of the spirit ” — “ tempted of the devil.” But the more natural inference is, that the scrivener, having just written “ situate and lying north of the road aforesaid,” and being about to specify what the land granted lay south of, used, as correlative and equivalent to the words “ lying south,” the words “ bounded north,” and inadvertently repeated the preposition “ of,” (which he had already applied to four of the boundaries — “ lying the south side of the county road ” — “ east" of Harvey Cole’s land ” — “ lying east of the river” — “situate and lying north of the road aforesaid,”) instead of substituting “on,” as he did in the next following clause, when he came to describe the western boundary on the other road. Upon the «construction for which the tenant contends, this road, which is as distinctly called for as any other monument referred to, would be wholly rejected. We are therefore of opinion that the deed in question included only land? lying compactly together, and not the outlying lot farther to thu north, which is separated by the land of Matthew Clark’s heirs from the other lands described. As the legal title in that lot, which is the land demanded in this action, is admitted to have been in Zenas Kingsley, and was not, for the reasons above stated, included in the deed to the tenant, it passed by the subsequent deed to Pomeroy, under whom the demandants claim, unaffected by any notice, actual or con [362] structive, of any of the matters offered in evidence by the tenant. None of those matters are therefore admissible to impeach or defeat the title of the demandants. It may be remarked that the unsealed agreement of February 1, 1838, between the parties to the deed of that date, under which the tenant claims, describes “ all the lands lying north of the county road” as “ adjoining the heirs of Matthew Clark on the north,” and that there is no evidence of the identity of “ the mountain lot,” therein mentioned, with the demanded premises. Judgment for the demandants.