| Ark. | Jul 15, 1840
delivered the opinon of the court:
The question now submitted for adjudication lies within a very narrow compass. It is, nevertheless, a question of considerable magnitude and interest, and one of no ordinary difficulty. Here we have given to the whole subject, and to every part of it, a most patient and full investigation.
i Both parties claim title to the land in controversy, under Sylvanus Phillips ; the lessors of the plaintiff, as his legal heirs and representatives; the defendant in the action, as a purchaser, for a valuable consideration, from his immediatevgrantees. The law was adjudged below in favor of the appellee^ upon an agreed case. That judgment is now brought before the court by appeal, for revision and correction.
The whole case turns upon the construction of the deed from Syl-vanus Phillips to Austin Kendrick and Arnold Fisher, bearing date the 1st day of October, 1830; and the question now to be decided is, what number of acres does that deed convey? The deed embraces a great variety of clauses, conveying different tracts of land, and it uses the same terms of description and limitation in regard to them all. It first states the number of acres contained in each tract, and it after-wards refers to and recites the particular patent and grant under which Phillips derived title. The words of the deed are, “ the party of the first part have granted, bargained and sold, and by these presents dt^grant, bargain and sell unto the party of the second part, and to their heirs and assigns forever, the following described tract, containing three hundred and sixty-six acres of land, being part of a six hundred and forty acre tract originally owned by Patrick Cassidy, and confirmed to William Russell under Patrick Cassidy, and patented by the President of the United States to William Russell, and his heirs, on the twenty-sixth day of March, one thousand eight hundred and twenty-four, which said tract of land was conveyed by William Russell to Sylvanus Phillips, by deed bearing date the thirteenth day of July, one thousand eight hundred and twenty-five, situate in the county of Phillips and Territory of Arkansas, adjacent the town of Helena.”
It is conceded on all hands that the true construction of this deed will determine the rights of the parties to this suit. If the deed conveys 366 acres to the grantee, then the law, arising upon the agreed case, is unquestionably for the defendant. But on the contrary, if it only conyeys 358 acres of land, the exact quantify or number of acres included in Russell’s deed to Phillips, of the ISthof July, A. D. 1825, then it is evident that the lessors of the plaintiff are entitled to a recovery of the premises in question.
The construction of the grant above quoted has been discussed with much ability and learning by the respective counsel engaged in the cause, and we have derived no inconsiderable aid and assistance in the formation of our opinion, from their logical and demonstrative arguments.
In the construction of deeds, says Lord Mansfied, the rules applicable to such instruments are accurately laid down and defined by all the authorities; and they rest for their foundation and support upon reason, justice, law, and common sense. We shall, in the present instance, only state a few of them, and such as we deem to have a direct bearing on the case under consideration.
1st. All deeds shall be construed favorably, and as near the intention of the parties as possible, consistent with the rules of law. Cruise Dig. 4, 202; Bridge vs. Wellington, 1 Mass. 219" date_filed="1804-11-15" court="Mass." case_name="Bridge v. Wellington">1 Mass. Rep. 219; Worthington, et al., vs. Hylyer, et al., 4 Mass. Rep. 202; Ludlow vs. Mayer, 3 J. R. 383; Troop, et al., vs. Blodgett, 16 J. R. 172.
2nd. The construction ought to bo put on the entire deed, and every part of it. For the whole deed ought to stand together, if practicable, and every sentence and word of it be made to operate and take effect. 4 Cruise Dig. 203, section 5, and authorities above cited. P. W’ms 497, Vaugh 167.
3rd. If two clauses in a deed stand in irreconcileable contradiction to each other, the first clause shall prevail, and the latter shall be regarded as inoperative. 4 Cow. 248; Mard. 94; 6 Wood. 107; 4 Comyns Dig., title Fait.
4th. The law will construe that part of a deed to precede which ought to take precedence, no matter in what part of the instrument it may be found. 6 Rep. 38 b.; Cromwell vs. Crittenden, 1 Ld. Raym. 335; 10 Rep. 8; Buls. 282.
5th. All deeds shall be taken most strongly against the grantor. For the principle of self interest .will make men sufficiently careful not to prejudice themselves, or their rights, by.using words or terms of too general ór extensive a signification. 4 Comyns Dig. title Fait; 4 Cruise, 203, sec. 13; 8 J. R. 394; 16 J. R. 172; Adams vs. Frothingham; 3 Mass. 352" date_filed="1807-11-15" court="Mass." case_name="Adams v. Frothingham">3 Mass. Rep. 352; Watson, et al., vs. Boylston, 6 Mass. Rep. 411. These rules are now regarded as maxims in the science of the law, and they are perfectly conclusive of the points to which they apply.
In all conveyances the grantor must describe the thing granted with sufficient certainty to ascertain its identity. And if he fails to do so, the grantee takes nothing, by reason of the uncertainty of the grant; for there being nothing for the deed to operate upon, of course nothing passes by it.
The most general and usual terms of description employed in deeds to ascertain the thing granted, are 1st, quantity; 2d, course and distance; and 3d, artificial or natural objects and monuments. And whenever a question arises in regard to description, the law selects those terms or objects which are most certain and material; and they are declared to govern in the construction of the deed. Upon this principle it is held that quantity must yield to course and distance, and that course and distance must give way to artificial and natural objects. These plain and salutary principles are fully sustained by all the authorities, as a reference to them will fully show. Williams vs. Watts, 6 Cranch, 148" date_filed="1810-02-28" court="SCOTUS" case_name="Massie v. Watts">6 Cranch, 148; Shipp, et al., vs. Miller’s Heirs, 2 Wheat. 316" date_filed="1817-03-11" court="SCOTUS" case_name="Shipp v. Miller's Heirs">2 Wheat. 316; Jackson vs. Barringer, 15 J. R. 471; Powell vs. Clark, 5 Mass. 355" date_filed="1809-09-15" court="Mass." case_name="Powell v. Clark">5 Mass. Rep. 355; Jackson vs. Hubble, 1 Cow. 617. In Jackson vs. Moore, 6 Cow. 717, it is declared that not only course and distance must yield to natural and artificial objects, but quantity, being the least part of description, must yield to boundaries-or numbers, if they do not agree. And in Mann vs. Pearson, 2 J. R. 40, and in Jackson vs. Barringer, J. R. 472, it is laid down to be a well settled rule, that where a piece of land is conveyed by metes and bounds, or any other certain description, that will control the quantity, although not correctly stated in the deed, be the same more or less. And the example put by way of illustration is that if a man lease to another all his meadows in D. and S., containing ten acres, when, in truth, they contain twenty acres, all shall pass.’ • Jackson vs. Wilkinson, 17 J. R. 147. In Powell vs. Clark, 5 Mass. Rep. 356, the rule is thus stated, “ in a conveyance of land by deed, in which the land is certainly bounded, it is very immaterial whether any or what quantity is expressed; for the description by the boundaries is conclusive.” “ And when the quantity is mentioned, in addition to a description of the boundaries, without any express covenant that the land contains that quantity, the whole must be considered as description.”
It is a general rule, “ if there are certain particulars once sufficiently ascertained, which designate the thing intended to be granted, the addition of a circumstance, false or mistaken, will not frustrate the grant.” M But when the description of the estate intended to be conveyed includes several particulars, all of which are necessary to ascertain the estate to be conveyed, no estate will pass except such as will agree to every part of the description.” Thus, if a man grant all his estate in his own occupation, and in the town L, no estate will pass, but what is in his own occupation and in that particular town. The description of the tenements granted must, in such a case, comprehend all the several particulars and circumstances named, otherwise the grant will be void. 4 Comyns Dig. Fait R. 3; Doughty’s case; Jackson vs. Clark, 7 J. R. 223; Blange vs. Gould, Cro. Car. 447, 473; Jackson vs. Loomis, 18 J. R. 84. But if the thing described is sufficiently ascertained, it shall pass, though all the particular descriptions be not true. For example, if a man convey his house in D, which was in the possession of R. C., when in truth and in fact it was in the occupation of P. C., the grant nevertheless shall be good. 5 East, 51, Roe vs. Vaumer. For it was sufficiently described by declaring that it was in the town of D. Hob. 171; Bro. Mr. Grants 92. Where there is error in the principal description of the thing intended to be granted, though there be no error in the addition, nothing will pass. Thus, says. Lord Bacon, “if a person grants tenementum suum or omnia tenementa sua in the parish of St. B. without Oldgate, when, in truth, it is is-without Bishopgate, tenura Cfu-lielmi, A, which is true, yet the grant will be void, because, that which sounds in denomination is false, which is the more worthy, and that which sounds in addition is true, which is the less. And though the words in tenura Gulielmi A, which is true, had been first placed, yet it had been all one.” 3 Rep. 9; Stukely vs. Butler, Hob, 171; Doddington’s case Co. Lit. 2, 32, 33.
Where lands are first described generally, and afterwards a particular description added, that will restrain and limit the general description. Thus,, if a man grants all his lands in D, which he has by the gift and feoffment of J. S. nothing will pass, but the lands of the gift and feoffment of J. S. 4 Comyns Dig. 287; 4 Cruise, 325; 1 J. C. R. 210; 4 Cruise, 225; Com. Dig. Parole A. 23; Bott vs. Burrell, 11 Mass. 167; Worthington vs. Hylyer, 4 Mass. 205.
We will now proceed to construe the deed of Phillips to Kendrick and Fisher according to the principles here laid down and established. The deed does not create either an express or an implied covenant to convey an exact quantity of acres mentioned in the first clause of the sentence, unless the terms “one other tract of land containing three hundred and sixty-six acres,” constitute such an agreement. Had the deed stopped here, there can be but little doubt that the grantor would have sold, and the grantees have taken the exact number of acres, as designated by these general terms. This it has not done, but it proceeds to add other words of. greater certainty, and of more particular description, limiting and restricting their general meaning. The grant declares the premises sold to be the “ said tract of land which was conveyed by William Russell to Sylvanus Phillips, by deed bearing date the 13th of July, 1825.” Then the land sold and conveyed to Kendrick and Fisher is the same identical/tract purchased by Phillips from Russell by deed bearing date 13& of July, A. D. 1825.
Here, then, ie land is first described by quantity, and afterwards by boundary. That being the fact, the deed in question falls precisely within the rule — that the quantity must yield to the boundary— because the latter description contains greater certainty and materiality. Again, a particular description cannot be limited by general expressions. In the present instance, there is a general description, and then follows a particular description of the thing conveyed; and where that is the case, and the two descriptions contradict each other, the particular description shall prevail. No one can doubt but that Russel’s deed furnishes a more accurate and particular description of the land conveyed than the simple affirmation that the tract contains 366 acres. Both parties fixed and agreed upon the metes and bounds of Russell’s deed for the purpose of ascertaining the exact number of acres conveyed. For if this was not the case, why did they refer to that deed, and recite it in the grant* By incorporating it into their agreement, they made it a part of their covenant, and constituted it the governing consideration of their contract, it is no answer to this argument to say that Russell’s deed to Phillips lacked certainty in description, and therefore its recital in Phillips’ deed to Kendrick and Fisher cannot render that certain which is in itself vague and doubtful. It is true that the deed conveys 335 town lots, a fraction of 18 acres, and 340 acres. The deed recited contains sufficient certainty to ascertain the quantity conveyed. The town lots are specifically described, and so are the 18 acre tract and the 340 acre tract. How then can the deed be said to want certainty in description 1 The two tracts of 18 acres and 340 acres do not amount to the 366 acres, but only to 358 acres. Russell’s deed therefore only conveys 358 acres, and that being the case the fraction of 3.82 acres cannot be included within the grant made by Phillips to Kendrick and Fisher of October 1, 1830.
The town lots mentioned in the deed recited are surely not embraced in the term tfi one other tract of land,” for in no point of view can it be considered as falling within that description or denomination. It is surely not a legal, consequence that because Phillips was the owner of the entire residue of the original tract of 640 acres, after deducting from it that portion out of which the town of Helena was formed, that therefore he intended to convey the whole of that residue to Kendrick and Fisher, neither does this position follow, or is strengthened by the fact that the two deeds of 13th of July and of 1st of August were recorded on the same day, to wit: on 13th of August, A. D. 1825.
Phillips’ deed to Kendrick and Fisher, reciting Russell’s deed to him, does not refer to the recording of that deed, but to the day upon which it was executed. The tract of land conveyed is then definitely described and ascertained by Russell’s deed. The grantor and grantees are presumed to know the exact quantity of land contained within the limits of Russell’s deedj and they both relied upon the estimation therein expressed. The grantee paid the purchase money for the number of acres contained in that deed, and the grantor parted with the premises there conveyed, according to its metes and bounds.
In construing the deed from 'Phillips to Kendrick and Fisher the court is restricted to the grant itself. For it contains no ambiguity or uncertainty upon its face. The intention of the grantor must be collected from the, face of the deedj and not from any other foreign or extraneous matter contradicting that deed. a The recital of one deed in another binds the parties and those claiming under them.” Technically speaking, it operates as. ah estoppel, and binds parties and privies — privies in blood, privies in estate, and privies in law. 1 Phil. Ev. 411; Comyns Dig. tit.*Evidence, B. 5; 1 Salk, 285; Jackson vs. Carver, 4 Peters, 83; 2 P. Wm's, 432; Wilks 11; 1 Dallas, 67; Van Ploesen vs. Holley, 9 Wend. Here the grantor and grantee, and all claiming under either of them, are bound by the recital. This recited deed, then, fixes and ascertains definitely the precise quantity of land, or number of acres sold and^conveyed by Phillips’ deed, bearing date 1st of October, A. D. 1830, to Kendrick and Fisher. That quantity consists of 358 acres and not 366 acres; and this being the case, it necessarily follows, from the facts admitted of record, that fractional C, as marked in the diagram, containing 3.82 acres, the land in dispute, was never sold and conveyed to Kendrick and Fisher, and consequently, they having no right to the premises, had no power or authority to pass the title of it to the tenant in possession. The maxim then, caveat emptor, expressly applies to his case, and he must look to his grantors for redress for the injury sustained.
The general terms used in Phillips’ grant to Kendrick and Fisher are restrained and governed by the recital of Russell’s deed of 13th July, A. D. 1825.
First, because the description by quantity contains mere words of explanation or addition, and constitutes the lowest degree of certaintykin ascertaining the land granted.
Secondly, because the general terms used in the deed are after-wards restricted and limited by an enumeration of particulars that definitely described the exact number of acres conveyed.
And lastly, because both the grantor and the grantees having recited another deed in the grant, they, and all claiming under them, are estopped from denying or questioning the conclusions or boundaries of the recited conveyance.
If the construction we have put upon the deed from Phillips to Kendrick and Fisher, of the 13th July, A. D. 1825, be the true rule upon the subject, then it necessarily follows that the instructions given to the jury by the court below were evidently erroneous. Therefore its judgment must be reversed with costs, and a new trial awarded, and the cause remanded, to be proceeded in agreeably to the opinion here delivered.