57 N.H. 157 | N.H. | 1876
Lead Opinion
FROM ROCKINGHAM CIRCUIT COURT. In this case the defendants' intestate made his deed of warranty, by virtue of which he conveyed a certain parcel of land with the usual covenants of warranty.
It appears that the property was conveyed to the intestate, Cotton, by one Merrill, and to Merrill by one Bailey. The distances in Bailey's deed to Merrill are substantially the same as in Cotton's deed to the plaintiff. But it appears that before the conveyance to Cotton from the representatives of Merrill, a strip from the west end of the lot, being about seventeen feet wide at the north end and five and a half feet wide at the south end, had been conveyed by them to Thomas Hough, and was in his possession at the date of the plaintiff's deed, being partly occupied by a shed and a division fence. As it does not appear that there was any dispute about this title or division, the line, so determined, of Hough's land, was, according to the authorities, a monument; and I see nothing in the case to take it out of the ordinary rule, that monuments control courses and distances. Hough's deed had been duly recorded, as we must understand, and Hough was in possession under that deed, not exactly according to its measure, but nearly so, and Hough was in possession according to his deed.
This being, according to the authorities, the true construction of the plaintiff's deed, the case does not show any breach of the covenant of warranty.
Accordingly there should be judgment on the report in favor of the defendants.
Concurrence Opinion
I also think the finding of the referee was right, and that there should be judgment on the report for the defendants.
The line of Hough's land was a monument on the ground, the location of which was indicated and made certain at the time of the deed by a shed and division fence. The boundary by Hough's land was a boundary by the marginal line of that land — Peaslee v. Gee,
Concurrence Opinion
When courses and distances in a deed are inconsistent with fixed monuments, the latter govern, for the reason that what is most material and certain controls that which is less material and *160
uncertain. Among the numerous authorities upon this point are Breck v. Young,
Where land is described in a deed as running a certain distance by measurement to an ascertained line, though without a visible boundary, such line is regarded as of itself a monument which will control the admeasurement and fix the extent of the land conveyed. Flagg v. Thurston, 13 Pick. 145; Breck v. Young, supra, and authorities cited. As Hough's line, then, was a monument, there was no breach in the covenants of the defendants' intestate. The defendants are therefore entitled to
Judgment on the report.
