Nutting v. Herbert

Fowler, J. Tbe first question presented relates to tbe alleged variance between tbe declaration and tbe deed offered in evidence to support it. We have considered it, and do not tbink tbe exception can be sustained. A deed must be pleaded according to its legal operation, and tbe contract set forth either in its precise words, or according to its legal effect. 1 Chitty’s Plead. 851, 852. But it is always sufficient to set forth the substance and legal effect of any contract, and generally this is tbe preferable mode of declaring. 1 Cbitty’s Pleading 302; Lent v. Paddleford, 10 Mass. 230. Tbe plaintiff has undertaken in tbe present case to set forth tbe substance and legal effect of the defendant’s deed to him, and we tbink successfully. He states the substance of tbe description of tbe land to be that portion thereof giving the distinct and definite boundaries of the tract, and we are satisfied such is tbe legal effect and true construction of the description. Where a general description of the land intended to be conveyed is given in a deed, and also tbe particular boundaries, tbe latter are to govern. Thorndike v. Richards, 1 Shepley 430. A general description of land in a deed may be enlarged, and is to be controlled by a subsequent particular description. Tenney v. Beard, 5 N. H. 58; Barnard v. Martin, 5 N. H. 536; Woodman v. Lane, 7 N. H. 241. If tbe first part of tbe description in a deed is complete in itself, but further matter of description is added which modifies or controls what precedes it, the latter part is not to be rejected as repugnant, but tbe whole language of the deed is to be construed together, if it may be, in order to ascertain the true construction. Clough v. Bowman, 15 N. H. 504. If the first part of the description is general, and the latter particular, so far as they are inconsistent the former must yield to the latter. Drew v. Drew, 8 Foster 489, and authorities. When other means of ascertaining the true construction of a deed fail, the settled principle is, that that construction must prevail which is most favorable to the grantee. Clough v. Bowman, 15 N. H. 513, and authorities; Cocheco Company v. Whittier, 10 N. H. 305. [126] Applying these well established principles of construction to the deed from the defendant to the plaintiff, we think there can be no doubt that the legal effect of the deed is correctly set forth in the declaration as a conveyance of the tract of land particularly described in it, the general description, “ all of the said farm which I own,” and “ meaning hereby to convey what I now own,’'’ yielding to the particular description by metes and bounds, both as more definite and as more favorable to the grantee. As to the competency of the depositions of John Nutting and Hannah Collins, it is a well settled rule of law that where parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of the engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, were reduced to writing; and all oral testimony of the previous conversation between the parties, or of conversation or declarations at the time the contract was completed, or afterwards, is rejected, as it would tend in many instances to substitute a new and different contract for the one really agreed upon, to the possible prejudice of one or the other of the parties. 1 Greenleaf’s Ev. 275, and authorities. A deed cannot be contradicted or varied by parol evidence, even to show that part of the premises included within the description were intended to be excepted from tbe grant. Jackson v. Gray, 12 Johnson 427; Austin v. Sawyer, 9 Cowen 39; Conner v. Coffin, 2 Foster 238, and authorities; Milling v. Crankfield, 1 M’Cord 258. The testimony of Nutting and Collins could not, then, be received to contradict or vary the deed from the defendant to the plaintiff, by showing that the house and land owned and occupied by Merrill were not intended or understood to be included in the conveyance, for the purpose and with the result of negativing any breach of the covenants of seisin and good right to convey, for which, in part at least, they seem to have been offered. But they were admissible on the question of damages. Th© measure of damages for the breach of the covenants of seizin and [127] good right to convey, is the consideration paid and interest thereon. In the case before us, Merrill was in possession of the premises in controversy at the date of the conveyance from Herbert to the plaintiff, and has so continued without interruption or claim of the plaintiff. There can, therefore, be no question that the proper measure of damages must be the consideration paid, and interest. Bickford v. Page, 2 Mass. 455; Marston v. Hobbes, 2 N. H. 433; Ela v. Card & al., 2 N. H. 178. And in an action for the breach of these covenants, the true consideration, for the purpose of ascertaining the damages to which the plaintiff may be entitled, may be shown, notwithstanding a different consideration may be expressed in the deed. Moore v. Shattuck, 4 N. H. 229. Whatever evidence, therefore, tended to show the consideration actually paid for the premises before granted to Merrill, or to show that no consideration was paid for them, for the reason that it was known and understood by the parties that they were not to pass by the conveyance, was competent and admissible on the question of damages, although inadmissible upon the issue raised under the plea of omnia performavit. If the jury or an auditor should find that nothing was paid for the Merrill place, although it is clearly included within the deed, hut that both parties knew and understood it to have been previously sold, and that in fact it was included in the deed by mistake or through inadvertence, the plaintiff would be entitled to nominal damages only. The precise question involved in the exception to this evidence came before the Supreme Court of Massachusetts in Leland v. Stone, 10 Mass. 459, upon exceptions to the ruling of the judge at nisiprius admitting similar testimony, and it was there held that the testimony was properly received, and the jury, having returned a verdict for nominal damages only, a new trial was refused. The reasoning of the court, in the opinion of Justice Jackson, in that case, seems to be sustained by principle as well as authority, and is quite satisfactory and conclusive. It was fully sanctioned and approved in this State in the case of Barnes v. [128] Learned, 5 N. H. 264, and we see no reason to question its correctness, or tbe soundness of the doctrine established by it. As we are of opinion that the plaintiff is entitled to judgment on the case transferred to this court, it must be remitted to the Common Pleas, with an order,'that the amount of damages be determined by the jury or an auditor, at the election of the plaintiff, according to the agreement of the parties.