Clark v. Beloff

Tokbakbe, J„ The question in this case is whether the deed from Mrs. Burwell to Mrs. Clark in April, 1895, conveyed a lot of land on Cedar street with a frontage of 122 feet, or one with a frontage of, substantially, only 117 feet. At the time that deed was made Mrs. Burwell owned the entire tract of land fronting on Cedar street, between the [242] Burnham land and the land of the railroad company, having a frontage of substantially 364 feet. As the owner of this entire tract, Mrs. Burwell in April, 1895, conveyed the northerly portion of it, next to the Bum-ham land to her daughter, by the deed here in question, in which the easterly and southerly boundaries of the land conveyed are described as follows: “ Bounded easterly by Cedar street 122 feet; southerly 219 feet, more or less, by my own land, from which it is separated by a straight line drawn westerly from the west line of said street at right angles thereto from a point in said west line of said street 247 feet northerly from the land of the New Haven and Derby Railroad Company when measured on said westerly line of Cedar street.” We have here, upon the agreed facts, a repugnancy between what may be regarded as two calls in this deed; between a call which locates the point in question as being 122 feet from the Burnham land, and one which locates it 117 feet from that land; for that is the apparent effect of the second call when applied to the land; and the question is which shall control. Under the circumstances disclosed by the record we think the first should control. In the first place we think this is so, independently of the rule that the deed should be construed in favor of the grantee as against the grantor; because such a construction will best carry out the intent of the parties apparent upon the face of the deed, which is the matter of chief importance in cases of this kind. In descriptions of land the rule is that that part which is most material in importance and certainty shall prevail. In the deed in question the grantor, by the words “ Bounded easterly by Cedar street 122 feet,” first fixes the southeast comer of the lot to be conveyed at a point 122 feet from the Burnham land, which last was a known and fixed point. This sufficiently and definitely fixed the east boundary line and point of departure for the south boundary line, and determined the amount of frontage, an important and control [243] ling matter in. the conveyance of a city lot. About this point as thus fixed there could be no mistake or misapprehension. Had the grantor stopped here, and run the southerly line from this point, there would have been no room for dispute; but she goes further, and locates the southeast corner of the lot by a measurement from her south boundary line as well. Upon the record we are bound to assume that, in locating this southeast comer by both measurements, she intended to locate and supposed she was locating it at one and the same point on the west side of Cedar street; certainly it would be very unreasonable to hold that in adopting both measurements she deliberately intended to designate two distinct and separate points. Her apparent intent in adding the second call is merely to locate in different ways one and the same point. It is as if she had said in the deed: The southeast comer of the lot is at a point on the west side of Cedar street 122 feet south of the Burnham land, which point is also 247 feet north of the railroad land. She said this in effect, and undoubtedly believed it to be trae. On the face of the deed then it thus appears that she intended to convey a lot with a frontage of 122 feet from the Burnham land, and supposed this would leave herself a frontage of 247 feet; or at least such an intent appears more clearly than does the contrary intent to give a frontage of only 117 feet. There is nothing in the language' of the second call that clearly indicates an intent to alter the location of the southeast comer already made, or to cut down the frontage already expressly fixed. If she had intended it to have an effect of this kind, such intention should have been clearly expressed. On the whole we think the first call should control in fixing the southerly boundary line, because it is the most certain, and therefore this construction will best carry out the intent of the parties so far as it is clearly expressed in the deed. In the next place, we arrive at this same result if we apply the rule that the words of a deed shall be construed most strongly against the grantor. This rule does not mean [244] that the words of the deed are to be twisted out of their proper meaning, or that a meaning that shall work a wrong or injustice shall be imputed to them. It only means that if the words are capable of two or more meanings, and after all the legitimate aids to the discovery of their meaning have been used, we are still unable to determine which of those meanings was the one intended, we must take that one of them which is most favorable to the grantee, if that works no wrong or injustice to any one. Elphinstone on Deeds, Rule 21, and cases cited. This rule is recognized in this State, though its application is not very frequent. Bushnell v. Proprietors of Ore Bed, 31 Conn. 150; Hoyt v. Ketcham, 54 id. 60, 63. The dispute in this case is in effect between the grantor and grantee in the deed to Mrs. Clark, for the defendant claims under a subsequent deed of Mrs. Burwell. In this case the language of the deed is susceptible of different meanings, and plausible reasons can be given in favor of either of the opposite meanings contended for by the parties. If we assume that it is not clear upon the record which of these meanings should be adopted, and that a good deal of doubt exists about this matter, then we think the above rule would resolve the doubt in favor of the plaintiff. The Superior Court is advised that the deed of Mrs. Bur-well to Mrs. Clark, referred to in the agreed statement of facts, conveyed to the latter the strip of land in dispute in this case, and that judgment should be rendered for the plaintiff. In this opinion the other judges concurred.