Rugg v. Ward

The opinion of the court was delivered by ROSS, Ch. J. The question in controversy, is in regard to the division line between the land of the plaintiff and the land of the defendant. The referee reports, that, if the oral testimony admitted, was properly received and considered, the line is as claimed by the plaintiff. The defendant derivedliis title from Stephen Iiallihan, who received his from the plaintiff’s wife. On the controverted line, they were bounded by the Lewis LI. Beals farm. That farm was surveyed, and partitioned between the heirs of Lewis Ii. Beals in 1857. The portion adjoining the defendant’s land was set to Gridley Beals. The survey of this portion is mostly by courses and distances. When these are applied to the land, commencing at the point specified and running, either as claimed by the plaintiffs, or as claimed by the defendant, some of the distances where no monuments are specified in the description, must be disregarded to some extent, to return to the point started from. This raises a latent ambiguity, or uncertainty, to solve which, Oral testimony maybe received. As said byRedfield, Ch., Z .in Patch et ux. v. Keeler et al., 28 Vt. 332, ' “ It is evident that the uncertainty arises from the state of the subject matter, and not from the terms used in setting out the dower. And it being a latent ambiguity, it may commonly be explained by oral evidence. As it arose from the nature of the subject matter, oral evidence is admissible always to ascertain that subject matter.” To the same effect is Hull v. Fuller, 7 Vt. 100; Clary v. McGlynn, 46 Vt. 347; Pingry v. Watkins, 17 Vt. 379. None of the cases cited by the defendant’s counsel controvene these decisions. When no uncertainty arises in regard to which of two claimed lines is the correct one, upon application of the courses and distances, or other description of the premises; to the [405] subject matter, then, Unless controlled by monuments, the line indicated by the courses and distances must be taken. The language of the description controls, unaided by oral testimony, and it is the duty of the court to construe it. But if the application of the description to the subject matter manifests that all its ■ terms cannot exactly be fulfilled, and that by rejection of nearly equal portions of the, description, by-varying the courses, or shortening -or lengthening the distances, in two or more ways the description'beeomes applicable, and it is uncertain which is the one intended by the parties, oral testimony may be received to remove the uncertainty, as was done by the referee. Judgment affirmed.