| Me. | Jun 15, 1838
The material facts in the case appear in the opinion of the Court, which was delivered at the June term, 1838, by
The bill sets forth, that on the thirteenth day of June, 1834, the plaintiff made a verbal contract with Charles Emerson, for the purchase of a lot of land in Orono, and that by his consent, he entered into tbe possession of the lot, and during the same year built a bouse thereon ; and that since it was built be has continued to occupy it; that on the twenty-fifth day of May, of the following year, Emerson conveyed a tract of land, including the lot thus occupied, to the defendant; and that on the same day, for the purpose of carrying into effect tbe bargain between Emerson and tbe plaintiff, the defendant agreed in writing with the plaintiff, upon certain terms stated in tbe contract, which is set forth, to convey tbe same lot to him by a deed of release. The bill sets forth the bounds of the lot, alleges a performance on the part of the plaintiff, and a request for a deed, and a refusal to convey; and prays for a specific performance.
The answer admits the written agreement; admits, that he took a deed of Emerson of a tract of land including the premises ; that the plaintiff then occupied, the house by him built, and that he still does. It denies all knowledge of any verbal contract between Emerson and tbe plaintiff, differing from the written contract between the plaintiff and defendant; denies, that tbe bill correctly describes
By an amendment to the answer, the defendant alleges that he was ignorant of any survey of the lot; admits that he wrote a bond at the request of the plaintiff, obliging the plaintiff upon certain conditions never performed, to convey the lot to one Freese, and describing it as in the plaintiff’s bill; and alleges that at the time he informed the plaintiff, that if there were differences between the boundaries as stated in the bond and in his contract, that he should not be bound by them.
The only description of the lot to be conveyed contained in the written contract between the parties is, that the defendant “ agrees to give or cause to be given a quitclaim deed of the lot of land upon which the said Eveleth now lives.”
It appears from the testimony taken in the case, that m the summer of 1834, James H. Bennoch run out a lot from Emerson to the plaintiff, which is described, and the boundaries of which agree in substance nearly with those set forth in the bill, and that plaintiff soon after built his house upon it. In the cross examination of Myrick Emerson, the defendant puts the following question, “ were or were not your brother Charles Emerson!'s intentions to divide the lot bought by him of McRuer and Ricker, and the same by him sold to me, into three lots, and did he not so divide it ?” Answer, “ yes ; that was his intention, and he did so divide it, James J3. Bennoch tun it out into three lots.”
Charles Emerson says, “ the lot that Eveleth occupied in May, A. D. 1835, was the lot run out by Bennoch.” There is much other testimony taken by the parties, but it-may be regarded as im
Plow are the bounds of the lot “ upon which the said Eveleih now lives ” to be ascertained ? The defendant insists, that parol evidence cannot be admitted for that purpose. The rulo is fully admitted in equity, that parol evidence is not to be received to contradict, add to, or alter a written contract. But evidence tending to prove mailers extrinsic to the terms of a written contract, for tho purpose of applying it to the subject to which it relates, does not come within this rule. An ambiguity arising from too great generality of description may be removed by parol evidence, which applies it to a single object. 2 Stark. Ev. 558-9. In the case of Doolittle v. Blakesly, 4 Day, 265, tlie description in the deed was, “ one half the farm on which the said Moses then dwelt, together with one half of the old dwcllinghouse standing on said farm in Wallingford in Cheshire parish, that is, in quantity and quality.” Parol evidence was held to have been legally admitted, that a tract of land separated from the farm only by a highway, was uncultivated and uninclosed, and that the grantor possessed and occupied it after the grant, for the purpose of showing, that it was not conveyed by that description.
Where there was a devise of “ all that my Briton Ferry estate with all tho manors,” Sec. it was proposed, for the purpose of showing what estates passed, to give in evidence stewards’ account books, made by the stewards of the owners of tho estates, “ containing particulars thereof;” and that certain lands had gone by the name of tbe “ Briton Ferry estate in tbe county of Brecon.”
This evidence having been rejected, a bill of exceptions was taken, and a writ of error was brought before the House of Lords, and the question was finally sent to all the Judges, who decided, that the evidence was admissible, and that it ought to have been admitted. Beach v. Earl of Jersey, 3 Barn. & Cres. 870. These cases fully authorize the admission of the evidence before stated. And from it, one perceives, that the whole lot, which the defendant purchased, had before he purchased been run out and divided into three lots by Bennoch; that a lot on one end of the whole lot had been by tbe same person run out to the plaintiff; and that the plaintiff, according to the testimony- of Charles Emerson, was in
There is nothing in the contract, or in the proof, authorizing the conclusion, that by a conveyance of one third part in quantity of the whole lot, there would be a performance of the contract. The deed tendered does not therefore make out a defence; and there must be a decree for a specific performance.
This Court orders and decrees, that the defendant convey to the plaintiff, by quitclaim deed, the lot of land upon which the plaintiff lived on the twenty-fifth day of 'May, 1835, bounding the same as it was run out to him by James H. Bennoch; and that he pay the costs of this suit.