25 N.H. 49 | Superior Court of New Hampshire | 1852
The deed from Flagg to Bean described the premises conveyed as “ three certain pieces or parcels of land situate, &c., bounded S. E. by Bean's land and the cove, N. E. by Cochecho river, W. by Bean's land, land of Boyle and of Hurd, and the road;” and it then adds, “ meaning to convey all the land I purchased of S. JD. Bryant, L. Bean and A. Pinkham, referring to their deeds for particulars and again adding, “ meaning to convey all the land set forth in said deeds, and no more.” The plaintiff contended that this deed conveyed to Bean the land described in the three deeds referred to, while the court instructed the jury that it conveyed to Bean only what those three deeds conveyed to Flagg. It is of course to be kept in mind that the only question presented to the jury was, whether this deed was
Flagg had an estate in three and five-eighths acres of the lands embraced in the boundaries given in this deed, as tenant by the courtesy of his late wife, and of which his daughter was seized of the reversion, and this is set forth, that is, described, in the deed of Bryant to Flagg, and yet there could not be the slightest pretence for considering it as included in Flagg’s deed to Bean, because this land, though set forth in Bryant’s deed, was not purchased of him.
The general principle, that “ in a conveyance of land by deed, a general description of the premises conveyed may be limited and restrained by a particular description,” is well settled in the case of Barnard v. Martin, 5 N. H. Rep. 536, where it was held that a deed conveying “ my homestead farm in B., that I now live on and improve, it being the same land conveyed to me and J. M. by C. B., by his deed of December 2d, 1816, said J. M.’s half of which he conveyed to me, by his deed of December 19th, 1825,” did not convey a parcel of adjoining land, conveyed to the grantor by C. B. in 1819, though occupied with the other as one farm. Though the general description, if it stood alone, might be sufficient to pass the premises, yet when the grantor, by reference to his deeds, has declared what he intended by his homestead farm, the general description is restricted. The question decided in this case was carefully reexamined and affirmed in the case of Woodman v. Lane, 7 N. H. Rep. 241, where it was held that a deed, describing the premises conveyed as u my homestead farm in S., and is the same land conveyed to me by G. W. and R. W.,” giving the dates and place of record of those deeds, and
II. The only interest which S. D. Bryant had in the land, which he undertook to convey to Flagg, was an estate for his own life, as tenant by the courtesy of his wife’s land. He attempted to convey in fee. His conveyance was a valid transfer of his own interest, and of nothing more. His wife, by joining him in the conveyance, using proper and suitable language to pass her interest, agreeably to the decisions in -Massachusetts, might have passed her interest, and their joint conveyance would have made an effectual transfer of the fee. Bruce v. Wood, 1 Met. 542, and cases there cited. See 2 N. H. Rep. 547.
If the opinion of Woodbury, J., in Elliot v. Sleeper, 2 N. H. Rep. 525, that whoever signs, seals and delivers a written instrument, shall be bound by the promises contained in it, and by the same reason, by any grant or agreement to which he might make himself a party, should even be adopted as to persons not under any disability, there would seem to be good reasons against extending the principle to the case of married women. The principle, understood to be settled by the usage and custom of this part of the country, has never, we believe, been understood to go further than this, that “ a husband and wife must so far join, in order to make a valid conveyance of her estate, as to convey at the same time, on the same paper, and both in language suitable to pass the title of real estate.” 2 N. H. Rep. 527.
Here the husband and wife join in the conveyance, but
It was not necessary for the court to make any remark in relation to the covenants of warranty in the deed of Bryant, nor does it seem in any way called for. It was a matter entirely irrelevant to the issue to be tried, and had no bearing upon the suggestions which were made to the jury relative to the question of fraud, growing out of the seeming gross ignorance of the parties relative to the actual state of the title, and to the effect of the deed. It was not the purpose of the court to show that the conveyance did not include more than half the property, for that could in no way alter the matter, if the deed was fraudulently read, as the plaintiff alleged ; but it was to state the facts to enable the jury to decide whether the deed was so written by fraud or by mistake. The issue presented to the jury was, whether the deed was falsely and fraudulently read by the defendant, and its execution unduly obtained by means of that fraud. No other question was raised ; and the jury were instructed, that if the plaintiff had failed to make out this point, they should find their verdict for the defendant. It was supposed
It seems, however, that the exception is taken upon the reason, that the plaintiff conceives he is entitled to a verdict for four acres of the demanded premises, which were not included in the defendant’s deed, and to which the defendant did not pretend to set up any title. There would be no foundation for this idea if the language of the declaration should receive the same construction as that of the deed. At the trial it probably did not occur to either of the parties that the result of the action might affect the title to that part of the land, and the attention of the jury was not drawn to this point, either by the court or by the counsel.
It is now insisted that a different rule is to be applied in construing the declaration, from that we have adopted in relation to the deed. The general description of the demanded premises is not to be limited, it is said, by the reference to the deeds for a particular description. The description is complete and perfect in itself, and it is immaterial whether this land or any part of it was conveyed to the plaintiff by Bryant, .Bean or Pinkham. The entire allegation may be regarded as mere surplusage, which may be struck out without in any way impairing the cause of action, and which it is therefore unnecessary to prove. There can bé no exception taken on account of variance, as to any such redundant allegations, whether the proof supports the statement or not.
The principle, adopted by the courts in relation to the
During the trial, and when it appeared that the plaintiff’s title to a part of the premises was in fee, and to a part only a freehold estate, it was suggested that separate counts were necessary, and it was agreed that the plaintiff might so amend his writ, and the trial proceeded, as if it had been done. This suggestion was well founded. The rule is thus laid down in Stearns on Real Actions, 153. In writs of entry, the seizin of the demandant, or of him under or after whom he claims, must be correctly stated. If the demand-ant complains of a disseizin to himself or his ancestor, he must expressly allege a corresponding seizin. Thus where
The amendments then being necessary, and the parties having agreed they should be made, they are to be considered as if made. If the new counts had been drawn, as they almost necessarily must have been, cutting the premises into separate parcels, it would have appeared that a part of the plaintiff’s claim was for lands in which Bean claimed no title, and it may fairly be presumed, he would have disclaimed; and thus the present question would have been avoided. As no change was made or asked in the pleadings, if the court would not have restricted the plaintiff in filing new counts to the land conveyed to Flagg, by Bryant, Bean and Pinkham, the case would have stood as it does on the original count. As to this point we cannot undertake to say what rule might have been adopted by the court of common pleas, in the exercise of their discretion; and must therefore hold it doubtful, at least, whether the amended counts would not have covered the whole twenty acres, in which case the verdict should have been for the demandant for four acres.
For this reason, we think the verdict must be set aside, and when the parties have amended their pleadings, there must be
A new trial.