Middleton v. Wharton

Collins, J. Ejectment to recover possession of certain real estate. The plaintiffs admit the defendants to be well seized of the premises in controversy, if certain proceedings in probate court in the matter of the estate of Bussell Post, deceased, and a sale made under its order, were effectual to pass the title. I. The first objection made by the plaintiffs is that the order to sell the real property of the deceased, as made by the court, did not cover and include the tract of ground known as “Eagle Park,” on the plat of the town of Bald Eagle. The order directed a public sale of real estate not involved herein, and “also the town of Bald Eagle, in said county and state, according to the plat thereof on record in the office of the register of deeds of said county; said town being laid out upon * * * and unimproved; the said town of Bald Eagle being subdivided into eighteen blocks, * * * said blocks being numbered” from 1 to 18 inclusive. In addition to the 18 numbered blocks, which were outlined upon the plat, there was a triangular tract of land designated as “Eagle Park;” and as the 18 blocks were mentioned by numbers, and no reference made to the park, it is plaintiffs’ contention that it was not included in the order. There is no merit to this claim. The general description in the order is definite and certain. It specifies the town of Bald Eagle as the property to be sold, not the blocks, 18 in number. A mere inaccuracy [268] ■of description will not diminish or enlarge the subject-matter of an ■order of this importance. The rule in conveyancing is that when any property is sufficiently ascertained by the description it will pass by the instrument intended to convey it, although all the particulars stated in 'the instrument may not be true in respect to it. Doe v. Cranstoun, 7 Mees. & W. 1, 10; Scofield v. Lockwood, 35 Conn. 425. Where a deed of conveyance contains a general description, which is definite and certain in itself, and is followed by a particular description also, such particular description will not limit or restrict the grant which is clear and unambiguous by the general description. Bott v. Burnell, 11 Mass. 163; Johnson v. Simpson, 36 N. H. 91; Barney v. Miller, 18 Iowa, 460. It may be well to say here, however, that when courses and distances are given as a particular description, they are very much relied upon, even if the general description be definite, apparently. But in the case under consideration there is no particular description of the property to be sold, except that relied upon by the defendants, namely, “the town of Bald Eagle, * * * according to the plat thereof on record,” etc., which is explicit, and must control. The additional statements as to the town being subdivided into 18 blocks, and that the property is unimproved, are not inconsistent with nor do they contradict the words which we regard as descriptive. They are explanatory, and surplusage. 2. Eagle Park must be considered as extending to the lake. That part of it on which'the name was placed is no more separated from the strip bordering on the water than is one part of a block detached from the other by reason of the existence of an alley therein. The whole was designed evidently for park purposes, the smaller part upon the lake to be used in connection with and appurtenant to the larger. An alley or way is established over the tract by means of which that part of Lake avenue lying along the lake shore westerly is connected with that upon the east. A glance at the map will satisfy any one of the intent of the deceased when platting; and this conclusion will be fortified upon reading the certificate of dedication attached, in which alleys and passage-ways are specially mentioned. This is the only alley or way laid down upon the plat; all other thoroughfares are streets and avenues. [269] 3. We think the report of sale plainly shows to whom Eagle Park was sold. Judgment affirmed.