Tyrrell v. Comstock

Waite, J. The deed from Holmes to Baker, would most effectually have conveyed the demanded premises, had there been no reference to the date of the deed from Bulkley. The preceding deeds clearly show, that before the execution of that deed, the property had been conveyed to Holmes ; and that too, by a deed from Bulkley. The only difficulty arises from the recital of the date of the latter deed. The boundaries and description are substantially the same as in all the prior conveyances from Lewis down to Holmes, embracing a period of more than twenty years. The deed from Lewis describes it as being “ a certain lot,” although it originally was composed of two parcels ; and that description runs through all the conveyances. Does then the erroneous reference to the date of Bulkley’s deed impair what would otherwise clearly be the effect of the deed ? [213] There would perhaps be more difficulty in the case, were there no other description given than a simple reference to a deed of a particular date. In such case, it might be difficult to say what particular tract was intended. But here we have not only a reference to the grantor’s deed, but the boundaries given. Not so fully, however, as to render it certain from them, that the demanded premises were included ; but taken in connexion with other parts of the deed, and the language used in all former conveyances of the same property, no reasonable doubt can be entertained as to the proper construction. The land intended to be conveyed, was “ a certain lot” purchased of Bulkley — not a part of that lot; and the preceding conveyances show what that lot embraced. It is said, that the reference to a deed of a particular date is prima facie evidence of the existence of such a deed. This is undoubtedly true. But that evidence may be rebutted, by showing that in fact no such deed ever existed ; or circumstances from which that inference may be satisfactorily drawn. Here no deed of the date mentioned is produced,— but a deed from Bulkley to Holmes, dated in the preceding year, conveying this precise property to Holmes. To enable Bulkley again to convey it, by a subsequent deed, there must have also been another deed from Holmes to Bulkley, of the existence of which there was no evidence. There are circumstances in the case, indicative of a mistake on the part of the scrivener who drew the deed. The reference is to a deed of the same date as the one in which the reference was made. It is referred to as a deed recorded, and the number of the book and the page are left blank. It is further said, that in relation to the deed referred to, the burden of proof is upon the plaintiff: she must show her title, and prove her case. This is also true. But it is enough for her to show such facts and circumstances as will satisfy the minds of the triers, that no such deed ever existed. This, we think, was done, in the present case. The defendant might then rebut this testimony, by the actual production of the deed in question. This he did not do. Again, it is said, that if here were a mistake, the remedy is only in a court of chancery for the correction of that mistake. This would be so, if the mistake gave effect to the deed different from that claimed by the plaintiff. If the mistake were [214] such as not to embrace in the deed the land in question, so that as to that her chain of title was broken, it would be necessary for her to have recourse to a court of chancery. But here, the plaintiff claims the mistake does not alter or change the effect of the deed ; that the construction is the same as if the reference had been made, in so many words, to the deed of the 13th of August, 1829. If this is true, then she has no need of the aid of a court of chancery. It is finally insisted, that the court erred in not properly submitting to the jury the question as to what the parties in fact intended. But that intent can only be ascertained from the language used in the deed, and not from extrinsic evidence. Had the parties actually intended to convey the Starr lot, and failed to use the necessary language for that purpose, no title would have passed. So if they meant to convey but one parcel, and the language used embraced both, the title to both would have passed. The express language of the deed could not be controuled, in a court of law, by extrinsic evidence as to the actual intent of the parties. Upon the whole, we see no reason for disturbing the verdict in this case. In this opinion the other Judges concurred. New trial not to be granted.