Kruse v. Scripps

Opinion by Treat, C. J.: If a tract of land is conveyed by metes and bounds, or any other certain description, the grantee takes all of the land included within the designated limits, although the quantity may exceed what is stated in the deed; and he is restricted to those limits, if the quantity turns out to be less than is represented. The statement of quantity is considered as the most uncertain part of the description, and when inconsistent with boundaries, courses or distances, must be rejected. Powell vs. Clark, 5 Mass., 355; Jackson vs. Barringer, 15 Johnson, 471; Jackson vs. Moore, 6 Cowen, 706; Hathaway vs. Power, 6 Hill, 453; McClintock vs. Rogers, post. In this case, the premises in dispute passed by the mortgage. The mortgagee took all of the land within the limits of the quarter section, without reference to the number of acres stated in the mortgage. The statement of quantity must yield to the more definite description given to the land. No description could be more satisfactory and certain than the one contained in the mortgage. The tract, as surveyed and designated by the United States, is granted. By this description, its precise locality and extent can be ascertained. If the statement of quantity is inconsistent with the other parts of the description, it must be disregarded. Reject the words “ sixty-one acres of land,” and the description is perfect and complete. To give effect to these words, the more reliable parts of the description must be rejected, and the mortgage, as to the land in controversy, held void for uncertainty. If the premises passed by the mortgage, the title of the mortgagee cannot be affected by that of the subsequent purchaser. The construction of the mortgage must be the same, whether the mortgagor has conveyed the equity of redemption or not. Subsequent events cannot change the construction to be given it. The purchaser is to be charged with full notice of the legal effect of the mortgage. His rights, in this respect, are no greater than those of the mortgagor. Jackson vs. Loomis, 18 Johnson, 81; Van Wyck vs. Wright, 18 Wendell, 157, The doctrine of merger has no application. The title of Seripps relates back to the execution of the mortgage. The subsequent proceedings on the mortgage were in aid of his original title. Williams vs. Brunton, 3 Gilman, 600; State Bank vs. Wilson, 4 Gilman, 57; Den vs. Vanness, 5 Halsted, 102; Den vs. Stockton, 7 Halsted, 322. A notice to quit was not necessary. The relation of landlord and tenant did not exist between the mortgagee and the purchaser. Jackson vs. Hopkins, 18 Johnson, 487; Wakeman vs. Banks, 2 Connecticut, 445. The judgment of the Circuit Court must be affirmed, with costs. Judgment affirmed.