Drinkwater v. Sawyer

7 Me. 366 | Me. | 1831

Weston J.

delivered the opinion of the Court.

The extent and limits of the land conveyed in mortgage by the tenant, in December, 1828, to Gooding, and by him assigned to the demandant, are well ascertained by the particular description given. The large piece south of the road is described by its bounds ; and in respect to this no question is made. Then follow the words “ including the land whereon the dwelling house stands, which terminates at Cushing’s point so called, with all the buildings thereon.” This embraces very manifestly the land north of the road, that terminating at Cushing’s point, and the dwelling house standing upon it. The construction contended for by the tenant, would exclude a part of Cushing’s point, and the greater part of the dwelling house, of which the grantor was the undoubted owner at the time. Had there been no further description, the right of the demandant to all the land he claims, would have been too clear to admit of question.

But it is insisted by the counsel for the tenant, that the demand-ant’s right is restrained and limited by other parts of the description. The part, relied on to establish this limitation, is in these words, “ and in the same premises, which were conveyed to me by John Cushing, by deed dated February 15, 1821.” And it appears that the land in dispute had been previously conveyed to the tenant by the same John Cushing, by deed dated December 28, 1808. A purchaser looks to the terms iu which his purchase is described, rather than to the source from which his grantor derived title, unless reference is made to a prior deed for a description of the premises. There was no such reference in the deed in question. It is merely recited that the land conveyed is the same conveyed by Cushing to the tenant, in February, 1821. In the case of Worthington & al. v. Hylyer & al. 4 Mass. 196, Parsons C. J. says “ if the description be sufficient to ascertain the estate intended to be conveyed, although the estate will not agree to some of the particulars in the description, yet it shall pass by the conveyance, that the intent of the parties may be effected. Thus if a man convey a house in D, which was formerly R C’s, when it was not R C’s but T C’s, the house in D shall pass, because by the description of his house in D the estate intended to be conveyed is sufficiently ascertained.” And this rule is very necessary to give effect to conveyances ; for it often happens that through inadvertency, some particulars not essential to the description, may be erroneously stated. Suppose the tenant, by design or accident, had misrecited altogether the source from which be derived title, the land upon which the deed was intended to operate, would clearly appear from the particular description given. So that if Cushing’s last deed had in terms embraced only a part of the land, or had embraced none of it, or if he had never had any deed whatever from Cushing, all the land described in the tenant’s deed to Gooding must by law have passed, he being the owner of it at the time. Cushing’s second deed is bounded northwesterly by Sawyer’s land, and the piece in dispute is bounded, in that direction, by Fee’s land and the sea shore ; but Sawyer had other land on the northwesterly line, which would satisfy this part of the description. But whatever may have been the effect and true construction of Cushing’s second deed, the essential parts of the description in the deed made by the tenant are too strong and unequivocal to sustain the construction for which he now contends, which would exclude from its operation the piece in dispute.

Judgment on the verdict.