Gano v. Aldridge

27 Ind. 294 | Ind. | 1866

Frazer, J.

Ejectment for the south-west quarter of the north-west quarter of section 29, township 7 south, of range 14 west, in Posey county. There was a finding and judgment for the plaintiffs.

The only question to be considered is whether the finding was contrary to the evidence, and this depends upon the effect to be given to two deeds made by the ancestor of the plaintiffs, William Aldridge, from whom they claim title by inheritance. •

The first of these deeds was from William Aldridge to Adam Albrite, and purports to convey “ a certain tract of land situated in the county of Posey and State of Indiana, lying on the Wabash river, with the numbers as follows: a part of fractional section number 19, being the half of the west half of the north-west quarter of section number 29, in township number 7 south, of range 14 west, containing 40 acres, and also a small fraction of land, for quantity, beginning at the north-west corner of the aforesaid 40 acres, thence running with the west line sixteen poles, thence running to the river, a north corner, supposed to contain 4 acres.” This deed was put in evidence by the defendants below for the purpose of showing that title to the lands in controversy, or to some part thereof, had passed out of the ancestor of the plaintiff's during his lifetime, and became vested in Albrite. Though the lands are very awkwardly described, yet we think that it may be ascertained with sufficient certainty from the language, that the undivided half of the lands in controversy was intended to be conveyed. Some effect will, if possible, be given to the instrument, for it will not be intended that the parties meant it to be a nullity. It is a rule of construction that words of' particular description will control more general terms of description, when both cannot stand together. Moore v. Griffin, 9 Shep. 350. Applying that rule here, all that is said of “fractional section number 19” must be rejected, as contradicting the following definite description of the lands in section 29. Of this last, “the half of the west half of the north-west quarter” is conveyed. This is definite, except as'to the “half,” and the language in that respect cannot be effective to convey any particular half. But there is nothing which forbids a construction which will make it good for an undivided half, and this it may receive. It was, we think, therefore, not void for uncertainty. There was no evidence aliunde to aid in giving a construction to this deed. "We have merely the instrument itself, and the fact that at its date the grantor was seized of the west half of said northwest quarter.

The other deed alluded to is executed by said William Aldridge, and purports to convey to one Elizabeth Aldridge, “ a certain tract of land in the county of Posey, lying on the Wabash river, with numbers as follows, to-wit: the half of a fraction number 29, it’s the west half of the fraction, containing five acres, more or less, in township 7 south, of range number 14 west.” There may be facts not known to us judicially by which this description might be applied to a subject matter and appear to be intelligible. But there were no such facts in evidence. We cannot assume that the “fraction number 29,” means section 29. Standing alone, we know not by what admissible process of reasoning any court could give it any effect whatever.

J. Pitcher, for appellants. F. Lewis and W. Loudon, for appellees.

The judgment is reversed, with costs, and the cause remanded for a new trial.