Gates v. Lewis

The opinion of the court was delivered by Royce, J. When Williams and Wood executed the deed to the defendant, the plaintiff appears to have been in possession of the land attempted to be conveyed by it, as part of his own purchase. And by reason of such possession alone, that deed was probably rendered invalid, under the statute of A. D: 1807. But' in such case, the defendant might still have proceeded on his second ground of justification, by showing that he entered upon the plaintiff by licence and command of Williams-and Wood,-though their-deed to him might not be competent evidence for that purpose. The ground on which the deed was rejected must necessarily have led to the exclusion of any evidence, however proper in its character, under this branch of the defence. Therefore, we are not to assume that no such evidence existed, or to refuse a new trial because it was not offered, At present, the cause must turn on the question, whether Williams and Wood had parted with their title, before they deeded to the defendant; in other word's, whether the locus in quo was included in their previous deed to Church. Apart of the description in that deed must, of course, be rejected, since the whole cannot stand. To give the deed the operation for [513] which the plaintiff contends, we must reject the birch tree as the place of beginning, and the plaintiff’s east line will run but one hu-ndred and eight rods south of that tree, instead of one hundred and fourteen. All the other boundaries are preserved. On the defendant’s ^construction, we must reject the north-eást córner of the right as the place of beginning, and the north line of the right as the closing line in the. description; and another line must be substituted, which is not given in the deed. In determining what part of this repugnant description shall be rejected, we must follow the prevailing intention of the grantors, as manifested on the face of the deed. They profess to convey two liúndred trefes in the north part of the lot. This language implies, (though not conclusively,) that no part of the lot was situated still further north and east than the tract granted. They expressly make the north and south lines parallel; and this becomes impossible, if we take a diagonal line running westward from the birch tree. The west line is extended by the deed to the north line of the right, and the latter is made the northern boundary. And the north-east corner of the right., as well as the birch tree, is made the place of beginning. From all this we are satisfied, that the north-east corner- of the right was intended to be the controlling terminus in the description. The result is, that Williams and- Wood had no interest in the land,- by which their deed or licence to the defendant could be .sustained. Judgment of the county court affirmech-