Deery v. Cray

Mr. Justice MILLER delivered the opinion of the court. The objection to the' deed of 1787, from Samuel Lloyd Chew to his mother, Elizabeth Chew, is, that the description of the land conveyed is so uncertain as to render the deed void. The plaintiff excepted to the introduction of this deed, unless the plat therein referred to as made by Brown was produced and its lines shown; but the court permitted the deed to be read, subject to the right of the plaintiff to exclude the same hereafter, if upon the closing of the testimony it should not have been legally and sufficiently applied by defendants to the maintenance of the issue on their part. Now, unless the deed is so fatally defective as that no subsequent competent evidence could make it good in point of description, the court did not exceed its just discretion in permitting it to be read. In other words, if the uncertainty was a patent ambiguity, an uncei’tainty which inhered in the essence of the description, rendering it incapable of being applied to the subject-matter, then the deed was void absolutely, ánd should not have been admitted. Otherwise it was well admitted. But this-does not seem to us to be the character of the instrument. All .the boundaries given are well known and easily identified, except one. ' This one is to separate the *270 southwestern half of the manor from the other-half. The division is to be into moieties exactly equal in quantity. Now, it is entirely clear, that if you give a surveyor the number x>f acres of the whole tract, and the point on the • Northwest Creek where the division line is to commence, he can then determine mathematically the course, the distance, and the terminus of a straight line running an easterly direction which will divide the manor equally. It may be conceded that if there was nothing referred to in the deed by which the commencement of this line, or any other part of it, could at the date of the deed have been fixed, that it would have presented a patent ambiguity. But if there was ¿anything by which either the beginning or the end of the line could have been located, then the whole of it could have been located. On this point the deed seems sufficiently clear in two particulars. First, the line was to be run agreeable to the plat of land made by William Brown, of Anne Arundel County. Second, it was, with this aid, to be run under the direction of John Thomas, of said county. Now what is the meaning of this, fairly construed? It is that the grantor conveys one-half in quantity of the land’. It is to be divided by a line running from the creek eastwardly, and there is a plat of this land made by William Brown, which shows this line, which is to be run out on the ground according to' the plat, under the direction of John Thomas. The deed, therefore, refers perspicuously to the means which renders certain the description. “Ambiguitas patens,” says Lord Bacon, “Is that which appears to be, ambiguous upon the deed or instrument: latens is that which seemeth certain and without ambiguity, for anything that appeareth upon the deed or instrument; but there is some collateral matter out of the deed that breedeth the ambiguity.” So here the deed on its face presented no apparent uncertainty. It is only when we come to apply it, and.are unable to find or identify-the plat made by Brown or the line run by Thomas, that there" is any difficulty. The cases relied on by counsel for the plaintiff to show *271 that the courts of Maryland have established a different doctriue, are not inconsistent with what we have said. In Fenwick v. Floyd’s Lessee, the land was described as “ part of Resurrection Manor, containing 251 acres more or less.” Resurrection Manor was a large tract of 4000 acres, and the sheriff' levied on and sold 251 acres of it, with no other description than that just stated. Nothing else was shown by which this quantity could be located or identified, and the description was clearly a patent ambiguity on which the levy and sale was rejected'as evidence. In Thomas’s Lessee v. Turvey, three levies and execution sales were rejected, the schedules of which described the land as “part of Borough Hall, containing the supposed quantity of 130 acres of laud, more or less.” Borough Hall was a tract of 500 acres, and there was nothing by' which the location of the 130 acres could be shown, nor any evidence that it had ever been located. In Hammond’s Lessee v. Norris, the description in the deed was, “ all these two parcels of land, being parts of a tract of land called "Wood’s Enclosure,.and sold to said John Howard by Joseph Wood, one parcel containing 86 acres, the other 94 acres, as by deed duly made and recorded in Frederick County appears.” The court overruled plaintiff's objection, and permitted the deed to be read in evidence, but, as it subsequently appeared that there was no such deed as that referred to on record in Frederick County, and as no other satisfactory proof was made of the location of these tracts within the larger tract of Wood’s Enclosure, the court finally held that it conveyed no title. That is just in accordance with the action of the court on this case in admitting the deed to be read in evidence, subject to the effect of it as to title, when all the evidence should be in. This leads us next to inquire whether defendants have shown, by satisfactory ■ and competent evidence that this northern line had an existence, so as to enable us to determine what' is the south half of the manor. *272 Upon this point it does not seem to us there can be any doubt, for though the plat of William Brown is not produced, nor is it proved expressly that the line was ever run under the direction of Mr. Thomas, yet there is as much evidence as can possibly be expected to be produced after the lapse of eighty years, that such a line was run, and that with such slight changes as the holders of the title on each side of it made by consent and for their mutual convenience, a fence has been standing along that line ever since. And this does not depend solely upon parol.jevidence. The map in the chancery suit in Maryland, filed in' 1802; the deeds produced, and the proof made by the ancient witness, with the other testimony produced, * we think quite sufficient to show that the line mentioned in the deed of Samuel Lloyd Chew to his mother ivas run and established; that with the change made by Tate and Samuel A. Chew for convenience, it has remained the line to the present time, and that the parties claiming the north and south parts of the manor have recognized that fence for over thirty-five years as the line dividing their estates. We add further, that, as this testimony is uncontradicted, it is conclusive against the claim set up by plaintiff of any title derived from Samuel A. Chew, and of her case. † It is unnecessary to inquire into the effect of the mortgage given by plaintiff on her title, as we have already stated that she had none on which the-jury could have found a verdict in her favor, and the error, if there was one in the instructions of the court on that subject, could work her no injury. ‡ Judgment affirmed. Footnotes [*] See statement of the case supra, p. 266, for the nature of this map, the deeds, and other proof.. — Rep. [†] Sargent v. Adams, 3 Gray, 72; Bertsch v. The Lehigh Coal Co., 4 Rawle, 139; Munroe v. Gates, 48 Maine, 463; Reed v. Proprietors, &c., 8 Howard, 289; Noonan v. Lee, 2 Black, 499. [‡] Ryder v. Wombwell, Law Reports, 4 Exchequer, 32; Giblin v. Mullen, Id., 2 Privy Council Appeal, 317.