Prescott v. Hawkins

Parkéh, C. J. The evidence in this case went, very conclusively, to show a mistake in the deed from Judge Liver-more to Prescott, the plaintiiPs ancestor, if it might have been received for that purpose. But it is well settled that a court of law cannot correct a mistake in a deed, or receive evidence to sho'w such mistake, [26] with a view to give the deed a different operation from that which it would have by the terms of it. 5 N. H. Rep. 280, Enfield. vs. Permit; 18 Wend. R. 157. Van Wyck vs. Wright; 1 Fairf. R. 418, Lincoln vs. Avery. The court, therefore, was bound to consider the deed as having been correctly drawn, and the jury were so instructed. Connected, however, with this evidence, tending to show a mistake, was other evidence of a partial survey before the deed was made — -of directions respecting the completion of that survey — of the survey actually made, an erection of monuments, and some recognition of one of those monuments by Judge Livermore as the corner boundary of Prescott’s land; and the question arising on this evidence is, whether it was rightly left to the jury, with instructions that if an actual location was made by the parties, by the running of lines and the erection of monuments varying from the courses specified in the deed* this location would control those courses, and the land embraced in it pass to Prescott — that the evidence must be such as to show an agreement — and that they might consider, on the evidence before them, whether Joshua Smith made the survey, and established the monuments, by authority from Judge Liver-more to act for him — make a survey in his behalf — and fix a line that would bind him ; or whether Livermore after-wards, and before his deed to Hackett of the adjoining land, recognized and assented to it under such circumstances as to constitute an agreement; and that if they found either, and that Hackett and the defendants had notice, they might find a verdict for the plaintiff. There are cases in which a practical location of land, by agreement of the parties, varying from the description in the deed, will govern the courses and distances set down in the deed itself. 3 Greenl. R. 126, Brown vs. Gay; 7 Greenl. R. 61, Esmond vs. Tarbox; 13 Maine R. 329, Thomas vs. Patten; 7 Johns. R. 237, Jackson vs. Ogden; 7 Cowen’s R. 761, Rockwell vs. Adams; 16 Wend. R. 285, Adams vs. Rockwell; 19 Wend. R. 320, Clark vs. Withey. [27] And the actual establishment of monuments, by agreement of the parties, subsequent to the execution of the deed, will bind them, and those who claim under them, notwithstanding the monuments may vary from the courses and distances in the deed. 2 N. H. Rep. 197, Lerncdvs. Morrill; 1 Greenl. R. 219, Proprietors of Kennebeck Purchase vs. Tiffany; 12 Mass. R. 469, Makepeace vs. Bancroft. So, an agreement ascertaining and fixing the dividing line between adjoining owners, is binding, although the agreement is by parol. 6 N. H. Rep. 107, Sawyer vs. Fellows; 9 N. H. Rep. 473, Gray vs. Berry. But none of the cases cited come up to this case. They sustain the principles of law suggested on the trial, but not the application of those principles to the facts stated. Here was not, in truth, a practical location by agreement of the parties, either before the deed was made, or subsequent to its execution. The testimony shows that Judge Livermore gave directions to Smith, the surveyor, to run northerly, one hundred rods, parallel with the road, when he finished the survey ; but he does not appear to have constituted Smith his agent, or to have authorized him to make any agreement which should bind him, or to make any survey, as to course or distance, different from the description he was then intending to insert in the deed which was to be made. Nor did he authorize him to erect any monuments in his behalf. When Smith finished the survey, he was to act, and did act, as the agent of Prescott. This is apparent from the fact that Prescott employed him when the survey was commenced, and when it was finished. The acts of Smith, then, cannot be regarded as a practical location, controlling the courses of the deed which was made by Livermore subsequent to the time when he gave the instructions respecting the survey. Nor does it appear that Livermore, when he subsequently pointed out, or recognized, the tree, upon the road, as the [28] corner of Prescott’s land, had any knowledge that the survey had been made on the easterly side of the lot by running north, twenty degrees west, instead of “north, twenty degrees east,” as set down in the deed. As the tract sold was to be one hundred acres, this difference in the course on the easterly side made a material difference in the location of the northerly line, and in the termination of that line on the road where the tree was situated ; but there is no evidence to show that Livermore had then any knowledge that this difference had been made. What he thus said, therefore, cannot be regarded as an agreement establishing the tree as a corner, or as binding him to a location varying from the precise description in the deed. Aside from the evidence of a mistake, existing in the deed itself, there would be no pre-tence that any thing had been done, subsequent to its execution, which could bind the grantor. The verdict must, therefore, be set aside, and a new trial granted. But farther proceedings in the case may be stayed, until the plaintiff can have an opportunity to file a bill in equity, and have the mistake (which on the case before us seems to be so apparent,) corrected, and the deed reformed. And if, upon such bill, the mistake should be proved, and it should appear that Hackett, and the defendants, when they severally purchased, had notice of it; the correction may he made, in effect, to relate back, by injunction, or otherwise, so as to avail the plaintiff in this action. 2 Johns. Ch. R. 585, Gillespie vs. Moon; 4 Paige's C. R. 355, Gates vs. Green; 6 Paige 347, Gouverneur vs. Titus; 1 Ves., sen., 318, Henkle vs. The Royal Exchange Assurance Company. Verdict set aside.