Preston v. Robinson & Ross

The opinion of the court was delivered by Redeield, J. This case haying been argued during the pres [589] ent week, and the statute giving us no discretion to delay the judgment, we could not be expected to give a very elaborate opinion. There seems to us to be no very great perplexity in most of the questions involved. 1. We think the copy of the deed from Samuel Atherton to Josiah Preston, must be regarded as properly certified by the town clerk. He certifies the copy to be a true copy of the deed recorded in his office. We think, as it was manifestly his duty to certify a copy of the record, and as it clearly appears from the copy, that such a record existed in the office, it ought to be intended that the clerk certified from the record, the custody of which he of right had, rather than from the deed the custody of which he could not properly have. And in either case an uneducated town clerk might well say “ a copy of the deed.” In common language, even an attorney would so denominate it. This deed and the deed to plaintiff were no doubt intended to cover the whole right, and do in fact cover more than all. We are not prepared to say, that if it were necessary to decide that point, that the deeding of a given number of acres to one man, and another number to another, thus conveying the whole right to both, there being nothing to show that- the land was intended to be conveyed in severalty, it ought not to be regarded as creating a tenancy in common. We think it would. The ease of Clapp v. Beardsley, 1 Vt. 151, is evidently put upon the ground that the number of acres by the deed, were intended to be adjoining the other land, and so compose a particular portion of the lot. But here, there seems to be nothing to show any such intention, and it seems to us, that plaintiff and Josiah Preston are properly regarded as holding the lot in common, in the proportion of the number of acres specified in their deeds. Clapp v. Beardsley. The final conclusion of that opinion was, that the deed was not intended to convey any portion of the land in dispute, of course it could create no tenancy in common, if it conveyed no interest in that land. And even if the deeds showed that plaintiff’s right lay in severalty, and the other owner did not object to his acts of possession, a mere stranger like defendants, could not, and his intrusion might justly be regarded as a violation of the plaintiff’s possession. So too, the plaintiff’s contract to purchase the right of Josiah Preston, would enable him to refer his acts upon the land to Jo [590] siah’s deed, in order to determine whether they were to be regarded as possessory, or mere torts. This has often been decided when the license to enter was in writing, and we do not see but the same result would follow where the contract is not in writing. The contract is not shown for the purpose of effecting the conveyance of any interest in land from one man to another, which could not be done by a contract not in writing, or indeed by any instrument not having the requisites of a deed. And in the present case nothing appears to show that Josiah Preston had any title to the land. This deed is referred to, to show plaintiff’s claim of title. - And it may as well be shown by parol, as one may show that he made an entry by his servant or agent, under a deed to himself, the oral evidence being necessary to connect the entry with the deed. We think both these deeds sufficiently describe the land as being within the original charter limits of Huntington. One of the deeds, that of Josiah Preston, expressly says, “ lying in the original grant of New Huntington, laid to the right of James Ferris, son of Benjamin Ferris.”- Here is scarcely ground for equivocation. And the other deed is in fact, equally explicit, “ situated in the town of Huntington, drawn to the right of James Ferris, son of Benjamin Ferris.” This obviously refers to the town of Huntington as chartered. It is a portion of a right of land in that charter, which is conveyed. Any one would look to the charter for the right, and then to the right for its severance, and there identify the subject matter. This may always be done by parol. And it is not affected by a ehange of the name of the town, or setting a portion of it to another town. Suppose some one should now convey the right of some one of the original proprietors of Saltash, in the county of Windsor ? There is no such town in that county, at present. Would any one hesitate, upon finding such a right in Plymouth, which was formerly Saltash, to give effect to the deed ? It-is true, there was nothing in this case to submit to the jury, there being no dispute in regard to those facts which were important to be considered in giving a construction to the deed, it became a mere question of law. But if these facts had been in dispute, it would have been properly submitted to the jury, under a hypothetical charge, as is often done in cases of this kind. Judgment affirmed.