Orrick v. Bower

Ewing, Judge, delivered the opinion of the court. The first point that will be noticed is whether the court below erred in admitting as evidence the report of sale made by the administrator and the plat accompanying it. It is urged first, that the report could not be admitted to limit [212] the amount of land conveyed by the deed to defendants, because it is not referred to in the administrator’s depd; and second, that the plat attached to the report was improperly admitted, because it conflicts with both the report and deed. The report of a sale of real estate made by an administrator is the foundation of the title, and its approval by the court is his only authority for executing a conveyance ; and when it is referred to in the deed, it thus becomes a part of it, and they are to be construed together as one instrument. In this case, the statute on the subject of administration sales of real estate seems to have been duly complied with. The deed of the administrator shows that a full report of his proceedings was made to the county court, and that the same was duly approved. It is true, that there is no express reference in the deed to the plat; but the plat is referred to and made a part of the report, and thus becomes virtually a part of the deed, as much so as if it had been incorporated into the body of it. The admissibility of the plat as evidence and its effect are different things, which seem to have been confounded in the second point made by counsel. If the plat, by reference in the deed, becomes a part of the latter, it is admissible for that reason irrespective of any supposed conflict that may appear between them. What its effect may be in this respect, or how far one may control the' other in ascertaining the description of the land conveyed, is a question of interpretation, and not one of competency. In such cases, the writing referred to may or may not qualify the descriptive parts of the conveyance, and one may correct an erroneous description contained in the other, or even vary or add to as well as explain it. But the objection is not well taken for another reason. The acceptance of the deed was an acceptance of the plat, which was a part of it; and the defendants, (plaintiffs in error,) are estopped from impeaching it. They claim title under the deed of the administrator, and set it up as a defence, alleging in their answer that the land in controversy was con [213] veyed thereby. If they have title to any part of the land conveyed by that deed, the report and its approval is the basis of it. The land claimed by the plaintiffs in error is described in the deed as lot number eight, which is a small part of a large survey, and is described in- part by reference to the land of third persons, which is also similarly designated on the plat. The plat is thus made a necessary means of identifying the land, and of ascertaining Its relative situation to other lands sold by the administrator according to the plat, and which are referred to in the deed as -its boundaries; and the plaintiffs in error, in claiming under the deed, rely also upon the report and plat. The question in this case is one of boundary, and it relates to the southern boundary of the land conveyed by the deed of the administrator. In the deed it is described as “ all the right, title and interest which Nicholas Janis at the time of his death had in and to the real estate, being lot number eight of survey No. 159, bounded south by part of said survey; west by lots of Henry Bower, Jean Komepeter and Henry Dave; north by Charlesworth’s farm; and east by commons ; containing five and 59-100 acres.” The deed from the heirs of Nicholas Janis to Orrick (defendant in error) describes the land thereby conveyed as “ a tract of land lying northward of the city of St. Charles, and including part of survey No. 159, originally confirmed to Nicholas Janis under Antoine Janis, together with lands lying south-wardly of and adjoining said survey; the tract hereby conveyed being bounded on the north by the lands sold by Arnold Krekel, administrator of the estate of Nicholas Janis, deceased, to Rice and Barwise and to H. Bower; on the east by lot claimed by Henry Beckman,; south by lot of Lorenzo Holmes; and on the west by the St. Charles and Marais Croché macadamized road; and being all the land there lying contiguously which belonged to the estate of Nicholas Janis, deceased, and which the parties of the first part claim by inheritance or otherwise.” It is contended by the plaintiffs in error that the land in [214] controversy must be embraced in the deed to Rice and Bar-wise in order to make up the quantity therein stated to be conveyed; and that the southern boundary is so indefinite as to authorize an extension in that direction for that purpose. On the contrary, the defendants in error insist that no part of the land in dispute is included in lot number eight according to the deed and plat. If the boundaries of the land designated as lot number eight can be ascertained from the deed with the report and plat, the quantity embraced within such boundaries, whether more or less than the quantity called for in the deed, passes thereby. Quantity becomes material only where the boundaries are uncertain or doubtful, and then it is entitled to consideration according to the circumstances of the particular case. It forms no part of the description of the land conveyed, where monuments or visible objects are called for as boundaries, but is mere matter of estimate. Therefore, if all the particulars of the description by metes and bounds do not concur in designating as lot eight a parcel of land which includes the one 59-100 acres in controversy, then it is no part of the land intended to be conveyed. There is no difficulty in applying these rules satisfactorily to this case. It is evident, by comparing the deed and plat together, that to fix the southern boundary of lot eight where plaintiffs in error claim it should be, would be to derange the boundaries of the land and substitute another and different description. The call in the deed and plat for the western boundary is lots of Henry Bower, Jean Komepeter and Henry Dave; but if the southern boundary is extended as proposed, the western boundary would then be the lots of the persons named and the king’s highway ; and the northern boundary, instead of the call for Charlesworth’s farm, would be that farm and the land of Henry Bower — thus, giving an entirely different form to the land, and substituting other and different calls, and so varying the description as to include a parcel of land not designated by the plat or deed. If, instead of the call for the land of Bower, Komepeter and [215] Dave as the western boundary, it bad been designated by commencing at a point on the southern line of Charles-worth’s farm, thence south to the- south-east corner of the land of Bower, then it is evident that upon well established principles the purchaser would hav'e been restricted to the quantity within the area thus bounded, although it may have been less than the deed calléd for, and for a like reason should he be restricted to the quantity within the area of which the lands of Bower, Komepetér and Dave forms the western boundary. In the one case,'the beginning and terminating points are visible objects or monuments, definite and certain; in the other, it is a line coinciding with the eastern boundary of the lots of those persons, throughout its whole extent, which is equally definite. Hence the quantity called for in the deed must yield, as being a less certain criterion of the intention of the grantor to the more definite description of metes and bounds. Had the eastern and western lines of lot eight been described ajs extending from points on the Charlesworth farm south to points on the land of Janis so indefinite as not to be ascertainable with the requisite certainty, the quantity in such case might become material as descriptive of what land was intended to be conveyed; and the rule of interpretation insisted upon by counsel for plaintiff in error would apply. Judge Napton concurring, the judgment will be affirmed. Judge Scott absent.