20 Me. 61 | Me. | 1841
The opinion of the Court was by
The title of the demandant is deduced principally, by reference, from the deed of William Bradbury, then the owner of the entire property, to Elihu Baxter, dated August 3, 1835. That conveyed “ a certain saw mill site in Levant village, with the saw mill, machinery and fixtures thereon standing, including shingle machine and cutting off saw.” It is agreed that the mill, then and now standing, covers the whole demanded premises, as well the part defended, as the part disclaimed. This description would very clearly pass the whole mill and the land under it. Whitney v. Olney & al. 3 Mason, 280; Blake v. Clark, 6 Greenl. 436; Maddox v. Goddard, 15 Maine R. 218. In the first case the construction is even carried farther. Story .1. there says, “ the land under the mill and adjacent thereto, so far as necessary to its use. and commonly used wdth it, passed by force of the word “ mill.”
The deed adverted to, after describing and conveying certain other parcels of land in Levant and Corinth, not in controversy, has this clause, “ meaning to convey to said Baxter all the premises, which said Wm. Bradbury purchased of Benjamin Garland, by deed dated March 19, 1832, and recorded in Penobscot registry, book 28, page 448, with all the privtheges and subject to all the restrictions, therein expressed ; reference thereto for a more particular description of the premises.” Upon referring to that deed, besides the parcels in Levant and Corinth, it is found to contain only the part disclaimed, delineated with such exactness, that it cannot be extended to the part defended. It has certain specifications as water rights, which do not appear in the deed to Baxter, except by reference. It is in this point of view more particularly that the reference performs its office ; for as to the land conveyed, the prior description was clear and explicit.
If Bradbury had been the owner only of the part disclaimed, the restricted construction, for which the defendant contends, would have been better supported. Yet in that case, the use of terms, embracing the whole mill, as the mill site does also all the land under it, would hardly be consistent with good faith. The grantee may not have been conusant of the sources of Bradbury’s title. They are often adverted to without proper attention to entire accuracy; and should not be permitted to restrict a description, so definite, tangible and perfect, as is to be found in the deed in question. It did convey, what was derived from Garland’s deed of March ; but it also plainly and manifestly conveyed more unless mill and mill site, which are the leading terms of the conveyance, are to be so mutilated, as to embrace only a section of each. The reference contains no negative words, that the grantor conveyed only what Garland had in that deed conveyed to him ; although that would have been the fair implication, if no discrepancy of description had been disclosed, by a comparison of the two deeds. Had the conflicting part been false instead of being only de
Cases are to be found, where an erroneous or defective reference to the sources of title, have not been suffered to vary a prior description clearly and definitely given. Willard & al. v. Moulton, 4 Greenl. 14; Cutler v. Tufts, 3 Pick. 272; Drinkwater v. Sawyer, 7 Greenl. 366; Winn v. Cabot, 18 Pick. 553. The intention of the parties is not only clearly indicated by the terms they have used; but by the act of the grantee in taking possession of the whole mill, and the acquiescence of the grantor at that time.
Judgment for the demandant.
