21 Wend. 651 | N.Y. Sup. Ct. | 1839
By the Court,
The learned judge at the circuit, thought the description of the property in the covenant so entirely uncertain, that the instrument was’ inoperative and void. And it is clearly so if «we are bound toj stop with reading it, and cannot go beyond the face of the contract in search of its meaning. Were this a will, 'or deed conveying land, and the reference to the mill dam, carding machine and fulling mill, were used as description of parcels, then it is clear that in its own nature it would refer to some subject matter, in respect to- which we must look out of the instrument, and locate and apply the description if in our power, upon what is called extrinsic evidence. And if it were in proof, that the devisor or grantor owned one mill dam, one carding machine, and one fulling mill, and no • '■ other property of that description, at the date of his will or deed, ought we to hesitate in saying that he intended to pass such property i or, should we say that, possibly he might have intended some property of his neighbor or neighbors,, answering a similar description ? A. location or application of the description of parcels, must always be made by evidence aliunde ; and it seems, to me, that the mind could be left in no more doubt upon such evidence, as to what property was intended, than if it had been described - with the fullest accuracy. The instrument would be of a nature to pass the devisor's or grantor's property, and that • alone. This he would know; and he would also know
Agaiti : it is the duty of the court to make a will or deed effective if possible. TJt res mag is valeat quarn pereat. A man devises all his real estate : and, on inquiry, it is found that he owned none at the time ; but he had a power of disposition over the land of another. It has been held that the words “ my real estate,” shall apply to and pass such as he had the mere power to devise. Lewis v. Lewellyn, 1 Turn. Ch. R. 104, and see Standen v. Standen, 2 Ves. jun. 589, and Napier v. Napier, 1 Sim. 28 ; Wigr. on Extr. Ev.
I have so far adverted to the doctrine upon wills and other assurances of title, and, in principle,-1 can perceive no difference between the method of applying a description of parcels in such instruments, and that which we are to adopt in ascertaining the subject matter of an executory agreement. Indeed, a question arose in the late case of Shortrede v. Cheek, 1 Adolph. & Ellis, 57, the decision of which would seem to go the whole length of sustaining the ground taken
I have thus preferred letting the judges speak for themselves in the case cited; and it appears to me their remarks are of easy application to the covenant before us. I will
But we are admonished again and again, by the counsel for the defendants, that ambiguitas patens is not explainable ; and that every ambiguity is patent which appears upon the face of the instrument. Phil. Ev. 467, Am. ed. of 1823. Bacon’s Elem. Rule 23. So says Lord Bacon ; and he adds, that “ ambiguitas patens is never holpen by averment and the reason is, because the law will not couple and mingle matter of specialty, which is of the higher account with matter of averment, which is of inferior account in law; for that were to make all deeds hollow, and subject to averments, and so, in effect, that to pass without deed, which the law appointeth, shall 'not pass but by deed.” It is not necessary to deny this maxim as limited and explained by the examples which the author himself gives. They are only two: one of a gift to J. D. et J. S. et hceredibus, omitting to say the heirs of which. The other a gift in tail, remainder in tail; “ provided that if he, they or any of them, do any,” &c. restraining them of certain acts, in order to perpetuate the estate. In the first case you cannot aver whether the gift intended the heirs of J. D. or J. S. nor in
Several cases were cited by the counsel for the defendant. 1 have examined them, and find nothing decisive against our ability to sustain the covenant before us. My main attention has been directed to the cases cited by him from our own reports. Abeel v. Radcliff, 13 Johns. R. 297, 299, was clearly a case of patent ambiguity, within Lord
On the whole, it is impossible to doubt of the meaning of the covenant in question, on the extrinsic or collateral facts offered in evidence at the trial. It s possible that the declaration may have been defective, if it did no more than
The question before us is one upon evidence to explain and apply the covenant. We think that the evidence offered for that purpose was improperly rejected; and that there must be a new trial, the costs to abide the event.
Ordered accordingly.