164 Ind. 580 | Ind. | 1905
Appellants commenced this action to quiet title to a certain lot, alleging that the defendants were asserting a claim to a well situate near the east line of said lot.. It appears from an answer that appellants deraign their interest in said lot from a deed executed by appellees Adkins, a copy of which is set out in said answer. The description of what is conveyed is found in the following language of said deed: “Lot number 546 in the Marion Real Estate Company’s first addition to the city of Marion, Indiana, subject to the assessment against said lot for the improvement of Euclid avenue, and taxes that become due in November, 1891, and thereafter. The grantor hereby reserves the ownership of the well on or near the east line of the lot hereby conveyed.” It further appears from said answer that at the time of said conveyance the grantor John C. Adkins was the owner of a lot immediately east of said lot number 546, and that he has since continued to be the owner of said east lot; that at the time of said conveyance there was, and still is, a well situate midway between said lots, having a curb about four and one-half feet wide, east and west, by five feet long, north and south; that the north end of said curb is about seventy feet south of Euclid avenue; that there then was, and still is, a pump in said well. It is further alleged or stated that by said deed appellee John C. Adkins reserved, and intended to reserve, the ownership of said well, including the curb and pump, and this is followed by a general averment of ownership of the same. The answer concluded by a disclaimer of any further interest in said lot. Appellees demurred to this pleading for want of facts, and, their demurrer being overruled, they excepted and elected to abide their exception.'
1. Appellants’ counsel discusses at length the difference between an exception and a reservation. An exception is a part excepted from the general terms of that which is granted. The words, however, are often used interchangeably, and the mere fact that what is excepted is mentioned
2. The exception in the deed before us is not repugnant to the grant. The proper course was pursued of limiting the general words of the grant by the exception. 3 Wash-burn, Real Property, *640; 4 Kent’s Comm., *468; 1 Jones, Law of Real Property in Conveyancing, §518.
3. It is urged that the exception in question should be construed against the grantors. While it is true that courts are sometimes compelled to resolve doubts against the grantors in deeds, yet in doing so the courts but follow a rule of construction that is adopted as a dernier resort. Falley v. Giles (1867), 29 Ind. 114. It is our duty to effectuate the intention of the parties, if it can be discovered, and does not contravene any rule of law.
4. Counsel for appellants contends that it is not com petent to resort to parol evidence to identify the subject-matter of the exception, and that it is void for indefiniteness as to the extent of that which was excepted. It is not the office of the description to identify the land, but to furnish the means of identification. Rucher v. Steelman (1881), 73 Ind. 396; Scheible v. Slagle (1883), 89 Ind. 323; Trentman v. Neff (1890), 124 Ind. 503; Collins v. Dresslar (1892), 133 Ind. 290; Edens v. Miller (1897), 147 Ind. 208. It is thoroughly settled that extraneous and parol evidence is competent to apply the terms of a deed to the subject-matter. Colerick v. Hooper (1852), 3 Ind. 316, 56 Am. Dec. 505; Guy v. Barnes (1867), 29 Ind. 103; Indiana Central Canal Co. v. State (1876), 53 Ind. 575; Tewksbury v. Howard (1894), 138 Ind. 103.
5. Assuming that parol evidence would reveal the existence of this well on the east line of said lot, we perceive no reason why it should not be identified, just as a monument referred to in the description of a deed might be located.
7. Appellants’ counsel makes the point that the answer is drafted on the theory that the deed contained a reservation rather than an exception, and to that theory it is insisted that appellees shall be held in this court. The argument is too fine-spun. While it is true that the pleader used the term “reservation” in the description of the right asserted by way of defense, yet it is evident that the theory of the answer
Judgment affirmed.