Owings v. Freeman

Dickinson, J. This is an action of ejectment.' Both parties claim title by conveyances from the original owner of the land, one Vital Guerin. The defendants’ asserted title-rests upon a deed of conveyance from Guerin to one Whitney executed and recorded in the year 1851. The plaintiffs claim under a deed executed by the same grantor to one Owings in 1856. The controversy is as to the construction and effect of the former and earlier deed, in which the description of the land which it in terms conveyed was obviously erroneous in part. The place of beginning in the description is a certain designated point in a “line between Bazil and Guerin,” concerning which there is no controversy, although it is not marked by any monument. Starting from that place of beginning, the description in the deed is as follows: “Thence continuing north on said line a distance of fourteen chains and twenty-five links; thence running south, fifty-seven degrees and thirty minutes west, two chains and eighty-eight links; thence south, parallel with said Bazil and Guerin’s line, a distance of fifteen chains and eighty-five links; thence north, forty-eight degrees east, a distance of two chains and eighty-eight links, to the place of beginning, — containing four acres, more or less.” It will be seen that the courses and distances given do not return to the place of beginning, but that the terminus of the last course is some distance southerly from the place of beginning. It is apparent from the deed itself that this is the result of some error in the description, and that the last course was intended to terminate at “the place of beginning,” and to complete the inclosure of a tract of land intended to be conveyed. But effect should be given to the deed in accordance with the intention of the parties, if, rejecting any terms of description which by the application of the principles of [488] construction may be declared to be erroneous, enough remains to describe with certainty the land intended to be conveyed. The grantor owned all the land to which the terms of description in the deed were applicable, and we should regard the description as being in accordance with the intention of the parties, and give effect to it according to its terms, unless error is disclosed which forbids our doing so. Commencing at the designated definite place of beginning, and following the first three of the courses and distances given, no error, uncertainty, or inconsistency is disclosed. Thus far there is nothing to suggest a doubt as to these three boundaries being in accordance with the intention of the parties. It is only when the fourth and last course and distance is given that error is apparent. It is more certain that this line was intended to run to the place of beginning than that the inconsistent designation by course and distance was correct. It is certain that that boundary was not intended to be located where the description given in the deed would place it. This the plaintiffs not only concede, but insist upon. They claim, however, that the error should be corrected by going back to the third boundary given, and shortening the length of that line enough to make the last line given in the deed terminate at the place of beginning. But that would be impossible, without also changing either the course or the distance of the last line described in the deed. It is objectionable, too, because it changes the description of the third boundary in a particular which is essential in the description of that line. It is not like the rejection of an erroneous and unnecessary designation, leaving unchanged a description which is still complete. It is not necessary, even if permissible, to thus wholly depart from the description given in the deed in respect to any of the boundaries, and to resort to mere conjecture, unguided by anything found in the deed itself, in order to correct an apparent error. The deed may have effect in exact accordance with its terms, except as to one of the boundaries, — the last, — which, as both parties agree, is erroneously located by the terms of the deed; and as to that boundary the deed itself, in terms which we are not justified in regarding as erroneous, expresses the intention of the parties. We thus read the deed, and give effect to it as it is, where no error or inconsistency is apparent, [489] and only when error becomes apparent do we need to resort to principles of construction. From the definite and admitted place of beginning we follow the three first courses and distances given in the deed, in respect to which there is no apparent error; and when we come to the fourth boundary, where error first appears, and which is conceded to be erroneously located by the terms of the deed, we still follow the language of the deed, and run “thence * * * to the place of beginning,” rejecting as erroneous the given course and distance. We thus give effect to what must here be regarded as the more certain element in the description of this last line of boundary, making it to terminate at the place admitted to be the intended terminal point, and disregarding the less certain description by course and distance. This is sanctioned by the same reasons upon which is founded the rule that points or boundaries made certain by fixed monuments are to be regarded, to the exclusion of inconsistent courses and distances. If what we have indicated is the proper construction and legal effect of the deed, the plaintiffs are affected by it. They and their grantors purchased with constructive notice of it, and were chargeable with notice of the prior conveyance, according to its legal construction and effect. Order affirmed. (Opinion publisheds 51 N. W. Rep. 476.)