34 Mo. 579 | Mo. | 1864
delivered the opinion of the court.
The sheriff’s deed to Mullanphy and Dent was properly excluded for the want of an “ ascertainable subject matter.” The deed purports to convey “ all the right, title, interest,
1. Without the other testimony given to assist in ascertaining what was the land conveyed, it is obvious that it is utterly impossible, from the words used, to determine where, within the large tract (of 1800 arpens) the tract conveyed was located.
Were the deed a grant from Mackey himself, perhaps, in order to avoid a failure of the grant, and construing it most strongly against the grantor, it would be held to convey either all his interest in the large tract, or an undivided interest therein of fifteen hundred parts in eighteen hundred. But that rule of construction will not apply to a sheriff’s deed, as to which there can be no presumption of a contract by the owner for a conveyance. There is in the deed itself no sufficient certainty of description.
2. Proceeding to consider the deed in connection with the other testimony given, and applying to it the maxim “id certum est quod cerium reddipotest” (although we are not to be held as deciding that the maxim does apply to sheriff’s deeds,) there is still a fatal want of certainty of description. In the first place, the large tract being sufficiently described, the tract conveyed is a part of it. But what part ? how large a part ? “ 1500 arpens more or less” Looking to quantity as a means of description, we find it wholly uncertain. It may be 1500 arpens, it may be more, it may be less; and how much more or less equally uncertain. Rejecting, then, the words “ containing 1500 arpens, more or less,” because of their entire want of meaning as words of description, there is nothing remaining to show how large a
But, in the second place, if 1500 arpens be regarded as a certain quantity, (rejecting the words “ more or less,”) and we look to the words “ containing 1500 arpens” as descriptive of the tract of land, (and not merely as expressing the number of arpens contained in a tract otherwise described,) then the very testimony given to show the certainty of the description shows that there is no tract within the 1800 arpent tract to which the descriptive words “ containing 1500 arpens” will apply; for the deeds to Price, Murphy, Watson, and Hartwell, convey 448 arpens, (as calculated by the witness Cozens,) which, deducted from the 1800 arpens, would leave 1352 arpens, and no mode of computation shows the existence of a tract of 1500 arpens. Nor did the parol evidence make the description any more certain. None of the witnesses proved that any particular tract of land was known by the description-contained in the deed. 'They proved that the large tract was well known, and that it was known that some parts of it had been sold, but they did not prove that any part of the large tract was known generally by any such name or description as'that contained in the deed. The witnesses Dent and Walton testify only to the “ 1800 arpent tract,” or “ McDaniel tract,” as well known. Denny stated that he would have known the land to be sold by the description given; that is, he “ would have known it was in the 1800 arpent tract,” and Clayton testified that the “ description would have informed all the neighbors what was to be sold;” that after Mackey’s sales to Murphy, Watson and others, “ the tract was often called the 1500 arpent tract,” and also “ the 1800 arpent tract,” and sometimes “ the 2200 arpent tract,” thus showing that there was no certain name by which the tract was known such as the description contained in the deed.
Judgment affii’med.
