Administrator of Barnard v. Russell

19 Vt. 334 | Vt. | 1847

The opinion of the court was delivered by

Redfield, J.

The only question in this case is in regard to the description of the land. The statute, in such cases, requires the land to be described by “ metes and bounds.” It is so described here, if described at all. •

We are not aware, that the question in this case is to be viewed any differently, because the land has been subsequently levied upon by other creditors. The question is not, which of these levies is the more perfect, but, is that of the defendant such as will enable him to hold the land? And we do not see why, if the levy is good as against the debtor, it is not good against every body. In this view we do not see why any different rule is to he applied to a levy from that which is applicable to a deed, except, that when a deed will bear one of two constructions equally well, it shall have that construction which is most unfavorable to the grantor; — but it seldom happens, that a case is decided mainly upon that ground.

But in all cases, whether of a deed, or levy, when it depends upon mere conjecture what land is intended to be conveyed, the deed, or levy, shall be held void. But we seldom find such cases in the books; and those we do find are far less difficult, sometimes, than others, which have been sustained; so that one decision upon this point is not much guide to another. But in the present case we think the levy may stand good. The. general object, to point out the neighborhood in which the land is situated, is well ascertained. The land must lie north of the road; and the starting point is on this road. The expression is, “ in the north line of the road.” But here comes the first uncertainty ; it says farther, that this point is the “north-west corner of the house lot now occupied by Grover Dodge.” That house lot adjoins this road on the north; but it is the south-west corner which adjoins the road, instead of' the northwest. This is the only point, at which the west side of the house lot meets the road. This is the nearest we can reconcile the language. There is a manifest, palpable discrepancy. We must, then, reject something. This is the least, which will reconcile the terms ; and this is in accordance with the rule to give effect to all of the deed we can.

The parties could not be mistaken as to the road, or that the loest side of the house lot was intended; for that is the only side of the house lot which touches the road and at the same time the land levied upon. It is therefore perfectly certain, that north was written for south, and as we proceed in this way, we find all the other monuments to coincide with the levy, — the barn, the garden of Warren, and so along the garden to the centre of the brook. But here, again, the course is quite wrong; but the next monument is well known, — . the land that Edson sold to Grover Dodge. In all such cases courses and distances must be rejected and known monuments followed. And here, that the opposite course is given is of no importance; it is no more difficult to follow it, than if it only varied one degree. The next point is, where the centre of the brook intersects that land. If the course is to be rejected, it matters- not how much or how little it varies. This makes the levy good.

In the case of Maeck v. Sinclair, 10 Vt. 103, the levy was made good, as to the description of the land, by reference to deeds on record; in Gilman v. Thompson, 11 Vt. 643, the same result was attained by reference to land before conveyed, — which is the same in principle ; and in Galusha v. Sinclair, 3 Vt. 394, it was done by-running lines by the known monuments, — which is all that is done here. If we apply the- illustration used- by the judge, in that case, to this, of running the lines back from other known monuments,— and which, I think, is sound, — being the very mode which.a survey- or always adopts in cases of doubt, — it removes all difficulty in the present case.

Judgment affirmed.