Schlief v. Hart

McIlvaine, J. There is no doubt, that the deed from Albert Ely to Thomas Graham, under which the plaintiff derived title, should, upon its face, be constraed as a conveyance of the east half of the southwest division of section 17, to be ascertained by strict measurement. But, in our judgment, the terms of the description in the deed arc such as may be applied to a parcel of land either greater or less in quantity than the exact half of the division. • Ex [154] trinsic evidence, whereby the land described is identified, whether it be more or less than the mathematical half, does not contradict, vary, or explain the terms in the deed, but leaves every word in the description to be understood in its. plain and ordinary sense. It is not true, as asserted by counsel for defendant in error, that the description in the deed calls for a fixed boundary and monuments, or for a certain quantity of land. The description is of a tract of land, “ known as the east half,”' and “ containing fifty-four acres and eighty-four hundredths of an acre of land, be the same more or less.” It is contended, however^ that the words “ known as ” contained in the description of the land conveyed, are of no significance, or, that they should be understood in the sense of “ being.” We find no warrant in the context for rejecting these words, nor do we know any reason why they should not be understood in their plain and ordinary meaning. Some stress appears, also, to be placed on the fact, that the division line contended for by the defendant below was not run or indicated by the original survey of the section, nor by any survey made in pursuance of a public law, but wras arbitrarily located and marked by Heman Ely, then the proprietor of the section. The difference between the effect of a public and a private survey intended to subdivide a tract of land into halves, would, in this respect, as we understand it, be this: That in subsequent conveyances of the halves, the parties would be presumed to have adopted the line of the former survey; while it must be shown, as matter of fact,that they intended to adopt the latter; and as to the latter, their intention to so adopt it can be shown by extriusic testimony only,when it can be done without contradicting the terms of the deed. We need not now determine whether each and every item of the rejected testimony was competent. The question before us is, Was parol testimony of extrinsic facts and circumstances admissible to show that the tract of land “ known as the east half” was in fact les® than the mathe [155] matieal half of the division ? This question we answer in the affirmative; and as some of the rejected testimony was competent; it was error to reject such part. The exceptiou taken by the defendant below was to the ruling out of each and every part of the testimony so offered. Judgment reversed and cause remanded.