Eastman v. Knight

35 N.H. 551 | N.H. | 1857

Bell, J.

In the case of Drew v. Drew, 28 N. H. 489, the principles applicable to this case are discussed. “ In construing a description of property granted or devised in a deed or will, the facts of the case are to be first ascertained, that the instrument may be interpreted with reference to the facts which were before the grantor or devisor, because his intention and meaning may thus be most readily and satisfactorily ascertained.” “ When the description consists of several parts, it may prove, upon comparing the description with the land itself, that some of the particulars are incorrect, mistaken, or false.” “ If it can be ascer-tamed from such parts of tbe description, as are found correct, what was intended to be conveyed, the property will pass, and the incorrect parts of the description will be merely rejected and disregarded.” See authorities there cited.

The same rule is laid down in Emerson v. White, 29 N. H. 499, in the language of C. J. Parsons, in Worthington v. Hilyear, 4 Mass. 196, adopted by the court here in Lyman v. Loomis, 5 N. H. 408. “ If the description is sufficient to ascertain the estate intended to be conveyed, although the estate will not answer to some of the particulars of the description, yet it shall pass by it.”

It is well expressed by Sutherland, J., in Jackson v. Moore, 6 Cowen 717:

“ In construing deeds, effect is to be given to every part of the description, if practicable; but if the thing intended to be granted appears clearly and satisfactorily from any part of the description, and other circumstances of description are mentioned which are not applicable to that thing, the grant will not be defeated, but those circumstances will be rejected as false or mistaken.”

The principles thus stated are equally applicable to any person or thing erroneously described in a deed or will. A large class of cases are of such mistaken descriptions of persons. Nil facit error nominis cum de persona constat. Shep. Touch. 233, &c.; as to deeds, 2 Wms. Exors. 987; 1 Jarm.; Pow. on Dev. 337; Com. Dig., Devise, I; Parsons v. Parsons, 1 Ves., Jr., 266; Adams v. Jones, 9 Eng. L. and E. 269; Bernasconi v. Atkinson, 17 Eng. L. and E. 103; Thomas v. Stevens, 4 Johns. Ch. 607; Smith v. Smith, 4 Paige Ch. 271; Button v. Am. Tract Soc., 23 Vt. 336; Trustees, &c., v. Peaslee, 15 N. H., 317.

The case of Vose v. Bradstreet, 14 Shep. 156, applies the same principle to an error in the description of a deed referred to for a description of land. Two grantors conveyed certain lands, described as land situate in A., conveyed to us by G., by deed dated May 25, 1836, recorded book 92, page 51. The deed found at page 51, of volume 92, was dated in 1835, and was made to one of the grantors. The land intended was held to be well ascertained by reference to the record, and the deed was not affected by the error as to the date of the deed referred to, nor by the mistake as to the grantee.

In the present case there was but one deed to v/hich the reference could relate, and there can be no doubt as to the land intended. The deed consequently is not affected by the mistake of the date, which is merely to be rejected as an error of description.

A question seems designed to be raised relative to the attachment, but we think the attachment of all Niles’ interest was entirely effectual to hold his equity of redemption, and the sale of the equity on the execution was valid to convey that interest. The mortgage to the present plaintiffs, E. Niles and Tuttle, was subject to that attachment, and after this lapse of time any rights acquired under it have long since been lost.

Judgment for the defendant.