Bailey v. White

Fowler, J. In the view which the court have felt obliged to take of the rights of the parties in this suit, and the foundations upon which they rest, most of the questions raised upon the trial, as well as those discussed in the arguments of the defendant’s counsel, are entirely unimportant and immaterial. The case finds that the plaintiff owned the whole of lot 95, was in possession of the locus, and owned also the whole of lot 93, unless the locus belonged to that lot, and the title thereto was in the defendant. The defendant claimed title to the locus only by descent, and through intermediate conveyances from the heirs of David "White, whose title rested upon the deed from James White to himself, dated February 8, 1819. Now, if this deed conferred no title to the locus upon David White, it necessarily follows that the defendant had no title thereto, and the plaintiff, being in possession, was entitled to maintain his action. This seems to us to have been the exact condition of things, as shown at the trial and found by the case. — 342 — Before May 20, 1815, David and James White owned lot 93 in common. On that day it was divided .between them, and David quitclaimed to James all the northeastern portion of the lot, bounding him all the distance on the northeastern side by the southwesterly side line of lot 95, then owned and possessed by Dea. James Robinson. Whatever may have been done by the parties at the time of this partition, in relation to the establishment of the division line between lots 93 and 95, the legal effect and operation of the deed from David to James White, May 20, 1815, was to vest in James White the entire interest of David, and the complete and perfect title to the whole northeastern half of lot 93 up to the southwesterly line of lot 95. Sanborn v. Clough, 40 N. H. 316. There remained no portion of that lot on the northeasterly side thereof in common and undivided between them. David White and his heirs were estopped by this deed from afterward claiming any thing in those premises. Jackson v. Hasbrouck, 3 Johns. 331. When, therefore, on the 8th day of February, 1819, James White undertook to quitclaim to David a tract of land on the northeasterly side of what David had previously quitclaimed to him, and outside of the same, he evidently undertook to quitclaim to him a portion of lot 95, because the whole of lot 93 upon that side belonged to himself. But James White had no pretence whatever of any title beyond lot 93, and outside of the premises conveyed to himself by David, May 20, 1815, and, therefore, his quitclaim deed of land beyond his own boundaries could not give to his grantee the slightest pretence of title thereto. It has been said in the argument, and was ruled at the trial, that the deed of 1819 might be so construed as to reconvey, from James to David White, a portion of the premises which David had conveyed to James in 1815. We do not think this can possibly be done, consistently — 343 — with tbe well established rules of interpretation and construction. Tbe words, “at a stake and stones at tbe southwest corner, it being the northeast corner of land that David "White deeded to James White on the 20th May, 1815,” have a known and definite meaning, and can only be interpreted as indicating that the southwest corner of the premises intended to be granted was identical with the northeast corner of the land conveyed by David to James White in 1815; and when it appears that this northeast corner was the southwest corner of lot 95, or James Robinson’s lot, it is quite apparent that the intention was, and the operation of the deed, if it had any, must have been, to grant land lying northeasterly of the southwest corner of lot 95, which of course must be land within the limits of lot 95, to which the grantor confessedly had no title. Beside, the southwesterly side line of the premises granted by the deed of 1819 is described as running “by the land the said David deeded to the said James White” by the deed of May 20, 1815. These words, too, have a fixed and definite meaning. “By” does not mean “ over,” or “across,” but “along the line of” the tract of land conveyed by David to James White, and such is both its legal and common acceptation. Peaslee v. Gee, 19 N. H. 273. It seems to us entirely clear, therefore, that the deed of 1819 cannot rightfully be construed to convey any thing whatever from James to David White, because it in fact and in truth describes nothing. Bor the northeasterly side line of the premises described in the deed of 1819 is defined as running “ by said widow Robinson’s land,” and the ease finds that in 1819 the widow of James Robinson was in possession of lot 95 ; so that, by reference to the deed of 1815, we find that the northeasterly side line of the premises described in the deed of 1819 is identical with the southwesterly side line thereof; for the south — 344 — westerly side line of widow Robinson’s land is the southwesterly side line of James Robinson’s land in 1815, and that is identically the same with tbe northeasterly side line of the land conveyed by David to James "White in 1815, because the deed of 1815 bounds James White all the way on the northeasterly side by the land of Dea. James Robinson. So, too, the southwest corner of the premises undertaken to be conveyed by the deed of 1819, being the northeast corner of the land conveyed by David to James White in 1815, and that northeast corner being fixed by the deed of 1815 as James Robinson’s southwest corner, and the identity of the land of widow Robinson in 1819 with that of Dea. James Robinson in 1815 being found by the case, it follows inevitably that, when the deed of 1819 starts from the northeast corner of land conveyed by David to James White in 1815, and then runs northeast about six rods to the southwest corner of widow Robinson’s land, the point at which it commences and at which it terminates being one and the same, the familiar and almost elementary principle, that courses and distances and computed contents are to be controlled by monuments, being applied, no line whatever is described as the southeastern boundary line of the premises intended to be conveyed, and the side lines having already been shown to be identically one and the same line, the deed of 1809, although it purports to convey a tract of land of one hundred and thirty square rods, describes and can convey nothing whatever, but must be regarded as wholly inoperative and void. Pernam v. Weed, 6 Mass. 131; Howe v. Bass, 2 Mass. 380 ; Folger v. Mitchell, 3 Pick. 401; Brimmer v. Proprietors of Long Wharf, 5 Pick. 135; Smith v. Dodge, 2 N. H. 303 ; Jackson v. Ices, 9 Cow. 661; Doe v. Thompson, 5 Cow. 371 ; Purinton v. Sedgely, 4 Gr. 286 ; Call v. Barker, 3 Fairf. 325 ; Belden v. Seymour, 8 Conn. 19. — 345 — The result at which we have arrived, therefore, is, that as matter of law, under the circumstances of the case, the defendant had, and could have, no title to the place of the alleged trespass, and the plaintiff, being in possession, was entitled to maintain his action to recover the value of the wood and timber taken therefrom by the defendant; while the trial in the court below was the result of an erroneous ruling in favor of the defendant, of which he cannot complain. In arriving at this conclusion, we have not failed to notice the numerous cases in this State and elsewhere, in which it has been substantially held that, if the land intended to be conveyed by a deed is apparent, any part of the description which is false or mistaken may be rejected, in order to effectuate the intention of the parties to the instrument. Harvey v. Mitchell, 21 N. H. 575, and authorities cited. There can be no doubt of the correctness and propriety of the principle illustrated by those decisions, but it has no possible application to the case before us. All the facts and circumstances found by the case, and disclosed upon the trial, show most clearly that those portions of the description in the deed of 1819 which the defendant asked to have rejected, were neither false nor mistaken, but exactly what both parties understood and intended to be the essential and decisive limitations of the boundaries of the territory described and intended to be conveyed in and by that deed. It is, we think, abundantly evident, that the parties to the deed of 1819 did not intend thereby, one to make, or the other to receive, a re-conveyance of any portion of the land conveyed by David to James White by the deed of 1815; and to reject those portions of the description in the deed of 1819 whicli go conclusively to locate the premises therein described northeasterly and outside of the tract included in the former conveyance, instead of carrying out the manifest purpose and true intention of the parties, — 346 — would operate completely to nullify tbat purpose and defeat that intention, and make tbe parties accomplish by the conveyance precisely what they did not design or intend. The exceptions taken to the judgment rendered for the plaintiff upon the verdict of the jury, must accordingly be overruled. Exceptions overruled.