Elliott v. Weed

Carpenter, J. The first question in this case arises on the motion for a new trial. The plaintiff, for the purpose of showing that the defendant intended by his deed to warrant that the premises convoyed should measure one hundred and eighty-nine feet on Pooto street, offered parol evidence to prove a conversation between the parties at the time of the sale. This evidence was rejected and the plaintiff excepted. It does not appear that this evidence was offered for the purpose of explaining any latent ambiguity, nor for the purpose of applying the description in the deed to the premises. On the contrary it does appear that it is a bald case of offering parol evidence the only effect of which is to control the legal construction of the deed. For that purpose it was obnoxious to the familiar rule that parol evidence is inadmissible to vary or explain a written instrument. Benedict v. Gaylord, 11 Conn., 332. The remaining question arises on the motion in error. The defendant conveyed to the plaintiff a piece of land describing it as follows: bounding “northerly on Foote street, one hundred and eighty-nine feet; westerly on land of George W. Goodsell, one hundred and forty-seven feet; southerly, in part by land of F. Wagner, and in part by land of II. P. Hoadly, and now of Edwin Potter, in all one hundred and eighty-nine feet; easterly by land now or formerly of William T. Porter, one hundred and forty-seven feet.” The court found that the defendant, at the time he gave the deed, owned one hundred and eighty-four feet only on Foote [24] street; and held that, inasmuch as his title to that was good, and was conveyed to the plaintiff, the fact that he did not own and convey to the plaintiff one hundred and eighty-nine feet constituted no breach of his covenants. The court manifestly regarded that part of the description referring to the adjoining proprietors as controlling the length of lines and the quantity of land. In this wo are inclined to think there was no error. The principle that governs this class of cases is that the greater certainty must prevail. Consequently where there are two or more conflicting descriptions in a deed, preference is given to that which is most certain. Hence known and fixed monuments will control courses and distances, and motes and bounds will control quantity, unless the deed shows a clear intent to give a definite quantity. Nichols v. Turney, 15 Conn., 101. In the case before us the boundaries are given by naming the street and the owners of the land on the different sides. Then the length of line on each of the four sides is given, and it turns out that within the given boundaries the length of line on Foote street falls short five feet. The only element of certainty about that line is its length. The two ends of the line are uncertain and can only be determined by ascertaining the line of the adjoining proprietors on the east and on the west. When that is done the line on Foote street can be definitely located. Its places of beginning and ending are fixed and certain, and must control the length of the lino. It is manifest that the defendant intended to convey all the land he owned within those boundaries and no more; so that if the quantity of land had exceeded that indicated by the deed the plaintiff would have taken the whole. The deed therefore docs not show a clear intent to sell exactly one hundred and eighty-nine feet of land. There is no error in the judgment and the plaintiff is not entitled to a new trial. In this opinion the other judges concurred.