Glenn v. Malony

Woodward, J. Tbe argument of appellants has, for the most part, been based upon the hypothesis, that respondent, to support his title, is required to contradict the records of the Probate Court, connected with the sale of this lot. If Ms title cannot be otherwise supported, we are clear that it must fail. That record must give its own history, and cannot be explained, varied, or contradicted by parol evidence. If, as it stands, the proceedings are sufficiently regular to pass the title, and to give the respondent the equitable, as well as the legal, right to this lot, the decree below must be affirmed,, otherwise not. It will be observed, that the inventory, notice, order of sale, and the return thereof all describe the property as “ town lot 72, on Main street, in the city of Dubuque, the undivided half of said lot, the whole being owned by Lawrence Malony, and David Sleator.” We assume that the order of sale so describes it, for it gives authority to sell all the real estate in the inventory specified, and thus adopts the description therein contained. The petition asks for license to sell all the real estate, and when it comes to the description, speaks of “ the undivided half of lot 72, in the city of Dubuqueand this description is substantively followed in the appraisement and other entries, except that the appraisement designates it as parcel No. 7, •the same'number as in the inventory. The question presented is, whether these proceedings may be sustained by the rule, that a false or mistaken description shall not vitiate. Falsa demonstratio non nooet. It is manifest, that when we come to apply this record to the subject matter, the description used is true in part, but not true in every particular. Malony and Sleator never owned lot 72, but they did 73. Are we justified, then, in rejecting the number 72, as being false, and upholding the proceedings; upon the ground that a sufficient description will still remain to ascertain their application ? Or, to change the [319] phraseology of the proposition, shall the respondent be deprived of this property, because the lot, otherwise accurately and correctly described, has been misnamed and called lot 72, instead of lot 78 ? This is the state of the case as presented to us, upon s'trictly legal grounds; and it is very probable, that the defendant’s claim might be sustained, upon even this merely legal view of the matter, by rejecting that part of the description which is falsa demonstrado. A brief reference to a few general rules and well-considered cases, will, we think, show how the argument would stand under that view. If a conveyance be so uncertain in its description, that it cannot be known whát estate was intended, the conveyance will be void. If the description includes several particulars, all of which are necessary to ascertain the estate to be conveyed, none will- pass, except such as corresponds with every particular of the description. But, if “there are certain particulars, once sufficiently ascertained, which designate the thing intended to be granted, the addition of a circumstance, false or mistaken, will not. frustrate the grant.” There must be a reasonable construction of the language used, and the identity of the land, ascertained from the entire description. If there shall, in the instrument, be a repugnant call, which by the other descriptive terms, clearly appears to have been made through mistake, the conveyance is not void by reason of such repugnant call. And, finally, when the instrument is applied to its subject matter, if it be found that the description in it, is true in part, but not true in every particular, so much of it as is false, is to be rejected, and it will take effect, if sufficient remains to ascertain its application. These general rules are fully recognized by the following, as well as other, authorities: 1 Grreenleaf Ev. § 301; Worthington v. Hylyer, 4 Vir. 205; Jackson v. Clark, 7 Johns. 218; Jackson v. Williams, 17 Johns. 156; Jackson v. Marsh, 6 Cow. 284; Lash v. Deuse, 4 Wend. 319; Loomis v. Jackson, 19 Johns. 449; Cleavland v. Smith, 2 Story, 291; Boardman v. Reed et al., 6 Pet. 328; Jackson, v. Sprague, 1 Paine, 494; Vase v. [320] Handy, 2 Greenl. 822; 4 Cruise Dig. tit. 82, ch. 21, § 31, and note. But there is a higher, broader, and more satisfactory ground, upon which the cause truly stands. Let us look away from the papers, and from the verbal description, a moment, and regard the matters of fact, the transactions in pais. The true lot was offered for sale, the sale took place upon it, the bidders saw it, they bid upon - it at the spot, they knew the lot really intended, and bid upon it accordingly ; they bid upon the lot they intended to bid upon and to buy, but the number in the papers was wrong — it was a mistake. Thus, Wilson bid upon the lot intended to be sold, and the one he intended to buy. Add the further fact, that in April, 1851, a settlement was made of the estate, at which time the complainants were present, either personally or by attorney, and admitted the correctness of '•the account, and they were paid the amount ascertained to be due each, by the terms of the will. Under these facts, the' case stands •thus/in legal proposition: The complainants claim the lot, in equity. Despondent answers, that he holds the legal title from the United States. Complainants reply that this -is true, but that he obtained this legal title with a knowledge of their ancestor’s, (or devisor’s,) equitable interest. He rejoins that this was divested by the executor’s sale. They rebut* by showing the mistake in the number; in effect saying, that although it was intended to sell this lot, and although the bidders bid upon it, and although Wilson supposed he had bought this one, yet in the papers it was described by a wrong number. Now, how does a court of equity look upon this ? He that comes into equity, must come, not only with clean hands, but with a pure conscience. How do the equities stand‘'between these parties? Not even so equally balanced as their legal positions. In .strict law, the complainants have the advantage of a mistake, but the respondent has the legal title from the source gí title. And what equity does the complainant show, to take away that legal title? None whatever. When he asks the court to set aside the probate sale, it is upon strictly [321] legal ground, and then the respondent may well show his title. There is no equitable principle upon which complainant asks to set aside that sale. The equity is all on the other side; consisting in the intent on the one side to sell, and on the other side to buy, the true lot, and the one which was in reality sold and bought. The mistake does-not appear to have misled, or in any manner prejudiced any one. - It was hidden in the papers, whilst the outside transaction was correct, true, Iona fide, and well understood. It is worthy of note, that the complainants do not offer to restore to respondent, or to his grantor, the money which either of them paid, a part of which has been received by complainants, and the remainder applied to the payment of their devisor’s debts. But in the view taken, no weight is given to this fact. 'We do not think this a cause presenting an equity which can prevail to set aside the legal title, quired from the government; and the court must, tjie: fore, refuse to interfere in behalf of the complainant.. The decree of the District Court is affirmed.