Benedict v. Gaylord

Church, J. Without going into so minute a detail of facts and description as is contained in this motion for a new trial, it will be sufficient, as to the first, question suggested, to state, that it was agreed, on the trial, that the operation of the deeds of conveyance from Benedict and others, was, to convey to the defendant pitches Nos. 1 and 2, and which in said deeds were described by fixed, well ascertained and visible metes and bounds, as well as by corresponding courses and distances. And the plaintiffs claimed, that no other land was conveyed, by the deeds in question. The defendant is in possession of the demanded premises, consisting of twenty-one acres and forty-seven rods more of land, in addition to said pitches Nos. 1 and 2, claiming title under the same deeds and under the last language of description, as land bounded on its several sides, by the adjoining proprietors named in said deeds, while he agrees, that this is excluded, by the first description, that of metes and bounds, &c. It is apparent from an inspection of these deeds, that the parties did not intend, by different descriptions of the granted premises, to convey different and additional parcels of land, but intended to describe the same land. The question is, which description shall cnntroul ? The case of Belden v. Seymour, 8 Conn. Rep. 19. recognizes the well established and governing principle, in cases of this character ; but whether the principle was correctly applied, in that case, is not equally obvious. The principle is, that the least certainty of description in deeds [336] must yield to the greater certainty, unless the apparently conflicting descriptions can be reconciled. Preston's heirs v. Bowmar, 6 Wheat. 580. Milling v. Crankfield, 1 McCord 258. 261. 4 Kent’s Com. 455. Pernam v. Wead, 6 Mass. Rep. 131. Doe d. Humphreys v. Roberts, 5 Barn. & Ald. 407. (7 Serg. & Loub 150.) No effect can be given to, and no extension can be made of, the first description by metes and bounds, so as to include the 21 acres, and 47 rods of land claimed by the defendant under the second description. And it is equally certain, that no effect can be given to the second description, without controuling the first. The first description given of the land intended to be convey- ed, is as certain as it well can be: known, visible and well as- certained monuments, the most important of which are natural and permanent, are referred to and described. These corres- pond, with all reasonable precision, with the courses and distan- ces given, and ascertained by actual survey : and as confirma- tory of the whole, the quantity of land expressed is found to be correct. It was insisted in argument by the defendant, that the second or additional description was of equal certainty. But this is obviously unfounded. The limits of another’s land re- ferred to generally, without particularity of description, or known and certain boundaries, are descriptions of great uncer- tainty, and can only be rendered certain, by investigation and survey. The charge of the judge at the trial, is clearly sup- ported by principle, as applicable to the facts in the case. But the defendant insists, But the defendant insists,notwithstanding, that parol evi- dence should have been admitted, for the purpose of proving, that the parties to these deeds intended to convey the tract of 21 acres and 47 rods, and supposed it was embraced in the first and particular description. If the two descriptions in these deeds had been equally certain, as the defendant claimed, it might have been contended, that a latent ambiguity existed, which might be explained, by parol; but we have already seen, that this is not true. Nor was parol evidence necessary to give effect to the deeds, and save them from entire failure; nor to show whether the demanded premises were parcel or not of the premises conveyed. If such had been the object of the evidence offered, the authorities cited by the defendant, are very conclu- sive to prove it admissible. But on the contrary, the only effect of the parol evidence offered, was, to controul the legal construe- controul the legal construe337 tton and effect of the deeds, in manifest violation of well settled principles of the law, 1 Ph. Ev. 412, 3 Stark. Ev. 1026. Doe d. Freeland v. Burt, 1 Term Rep. 701. Radford v. Southern, 1 Man. & Selw. 299. Doolittle & ux. v. Blakeslee. 4 Day 265. 1 Sw. Dig. 122. A new trial ought not to be granted. The other Judges concurred in this opinion. New trial not to be granted.