43 Me. 590 | Me. | 1857
The parties claim title under the same original grantor. The only question in controversy between them, is, whether William O. Colbath had any legal title to the north half of lot No. 13, range 1, in Stetson, at the time of the levy upon it as his property. It is conceded that said Colbath acquired a good title to said north half, by deed, dated December 16, 1836. A deed from him to Joseph Leathers, of twenty-five acres, taken from the north end of said north half, dated March 7, 1847, was introduced, subject to objection.
To show that at the time of the levy against William O. Colbath, he had parted with all his interest therein, and therefore nothing passed by the levy, the defendant read, subject to objection, a deed from William O. Colbath and Henry H. Colbath, dated November 5, 1840, and recorded, of a parcel of land situated in said Stetson, described as follows: “A part of lot No. 13, range 1, it being a part of the south half of said lot, and all of said half lot, except so much of said half lot as is deeded from William Colbath to Joseph Leathers.”
Leathers was permitted to testify that he did,not own any part of the south half of No. 13. There was also testimony that November 5, 1840, W. O. Colbath was in possession of the south part of the north half, and that he was not known to have possession of any part of the south half of No. 13.
The description in the deed of November 5, 1840, is distinct and clear. There is no ambiguity upon its face, nor is there any apparent repugnancy in its terms. It is contended that the exception in this deed, taken in connection with the testimony, shows not only a latent ambiguity, but that the
As already remarked, the alleged repugnancy arises from the exception in the grant. All the south half is conveyed, except, Ac.
An exception in a deed must be a portion of the thing granted, or described as granted, and can be nothing else. Craig v. Wells, 1 Kernan, N. Y., 315.
In Bell v. Morse, 6 N. H., 206, the land demanded had been conveyed in distinct terms of description, but the deed contained an exception of “ thirty feet in front, on tho north corner, to run parallel with the line of my garden fence, to the eastern line of the lot I bought of Joshua Howard.” It was proved by parol, subject to objection, that tho land described in the exception was no part of the land conveyed, as described in the deed, but was part of another lot, which it was contended the grantor intended to convoy. There were other facts, similar in character to those in the case at bar, tending to show a mistake in the description in the deed.
The court, in their opinion, say: But there are circumstances in this case which certainly render it not improbable that the land intended to be conveyed by that deed was in fact the forty acres.
One of these circumstances is the fact that a part of the forty acres, which was actually staked out by tho parties at the time, is excepted in that deed. Every one must at once perceive, that an exception, to have any effect, must be a part of that which would otherwise pass by tho deed, and that when one thing only is granted, to except another thing from the operation of the grant must be idle and nugatory.
There must be a grant before there can be anything for the exception to rest upon. Strike out the description, by number, in this case, and the exception falls with it, and nothing would pass by the deed. Thus tho exception, being part of the thing granted, cannot be repugnant to the grant.
In Lincoln v. Avery, 1 Fairf., 418, it was held that parol
Where a tract of land is granted in clear and unmistakable terms, the grantor and those claiming under him are estopped to say in a court of law, that the land thus described in the deed, was inserted by mistake, and that another piece of land was intended.
Such mistakes or errors can be corrected, if at all, only in a court of equity. Bell v. Morse, 6 N. H., 205; Barnes v. Leonard, 10 Mass., 459.
The parol evidence was improperly admitted. The exceptions are therefore sustained. But the verdict may be amended, and judgment entered, according to the agreement of the parties.