64 Ind. 162 | Ind. | 1878
This was an action to reform a deed, to quiet title, and to recover the possession of certain real estate.
The complaint contained three paragraphs.
The first paragraph alleged, that one William J. James was, on the 27th day of January, 1871, seized in fee-simple and in the possession of a tract of land lying in Warren county, described as follows:
“All that portion of the south-west quarter of section 17, in township 22 north, range 6 west of the second principal meridian, which lies in said county of Warren, and north of the Wabash river (except 20 acres off the west side of said quarter section, being a slip of 160 rods long, running north and.south, by 20 rods wide, running east and west,) containing 97 and acres; ” and that, on that day, the said James, together writh his wife, Sarah James, sold and conveyed said tract of land to one Henry O. Dawson; that, in conveying said tract of land, the said James and wife erroneously described it as “ being the following real estate in Warren county, Indiana, described as follows : The south-west fraction of section 17, town 22, range 6 west, * * * except 20 acres off of west side of above described south-west quarter that, on the 15th day of September, 1878, the said Henry C. Daw
The second paragraph was in the usual form for the recovery of the possession" of real estate, describing the land as “ The south-west fraction of the south half of section 17, in township 22 north, of range 6 west, in the district of lands offered for sale at Crawfordsville, Indiana, containing one hundred and seventeen acres and forty-five hundredths of an acre, according to the official plat of the survey of said lands returned to the general land-office by the surveyor general, except twenty acres off the west side, leaving ninety-seven and forty-five one-hundredths acres.”
The third paragraph gave a history of the plaintiff’s title, substantially the same as given in the first paragraph, concluding with a demand for the recovery of the possession of the land in controversy.
The defendants answered in general denial; also in several special paragraphs.
Issue being joined, the. cause was submitted to a jury for trial.
Verdict for the defendants.
•Upon the trial, the plaintiff, amongst other things and in connection with considerable oral testimony, gave in evidence the deed from William J. James to Henry O. Dawson; also the deed from said Dawson to the plaintiff ; also the plat of the original survey of said section seventeen, which was substantially as follows:
At the proper time the court instructed the jury, that “ The deed from James to Dawson, of date of 27th of January, 1871, conveys nothing by the description, ‘southwest fraction of section 17, town 22, range 6 west, in Warren county, Indiana,’ and does not, by the language used in it, convey the land in dispute to Dawson.”
The giving of this instruction, being "properly excepted to, was assigned as one of the causes for a new trial, and the exception thus reserved to the instruction constitutes
The descriptive part of a deed is to be construed with reference to the actual state of the property conveyed by it at the time of its execution, and the parties are supposed to refer to this for a definition of the terms made use of in the deed. 3 Washb. Real Prop. 384.
The land in dispute in this action was originally a portion of the public lands of the United States, which were laid off and platted into townships, sections and smaller subdivisions, and which have been offered for sale and sold according to the descriptions afforded by the surveys and plats of such lands, made and perpetuated under authority of law. 1. U. S. Stat., p. 464, and 2 U. S. Stat., p. 73.
The plat in evidence in this case gives a description of the location, situation and subdivisions of the section of which the land in suit constitutes a part, at the time such land was sold by the United States, and at the time it was conveyed by James to Dawson.
As has been seen, the Wabash river, a navigable stream, the bed of which has neither been surveyed nor sold, runs through this section, and cuts three of its quarter sections into fractional parts. In applying the points of the compass to this section, we must imagine ourselves as standing in the middle of the section. From that stand-point one fractional part lies mainly to the • north-east, another principally to the south-east, and the remaining one to the south-west. This latter fractional part embraces all of the' south-west quarter of this section, which lies north and west of the river, and when the south-west fraction of this section is referred to, that part of the south-west quarter of it lying north and west of the Wabash fiver is necessarily implied. But, aside from this construction of the plat in evidence, the reservation attached to the description in the deed.from James to Dawson seems to us to
This reservation says, “ except 20 acres off' of west-side of above described south-west quarterthus making it manifest that the parties understood the phrases “southT west fraction ” and “ south-west quarter ” as referring to and describing the same tract ot land. Stating the land to be in town 22, in Warren county, Indiana is equivalent to describing it as in town 22 north, as we must take judicial notice of the location of Warren county, with reference to ranges and congressional townships.
We are unable to see that the deed from James to Dawson needs any reformation. Key v. Ostrander, 29 Ind. 1; The German M. Ins. Co. v. Grim, 32 Ind. 249; Bowen v. Wood, 35 Ind. 268.
Erom what has been said, it is evident that the instruction given by the court in this case can not be sustained.
The judgment below is reversed, with costs," and the cause remanded for a new trial.