Hunter v. Hume

88 Va. 24 | Va. | 1891

Lacy, J.

(after stating the case), delivered the opinion of the court.

The general description in the deed in question is that the land conveyed is situated in Alexandria county, contains 280 acres, more or less, on the west side of the Washington and Alexandria turnpike. The turnpike is not stated there or elsewhere in the deed -to be a boundary, but this inference is excluded by setting forth as one of the boundaries the Alexandria canal, which runs between the body of the land granted and the turnpike throughout its whole extent.

The only difficulty in the question of boundary grows out of the misplacing of the points of the compass, stating south for east and east for south.- This error in description is not unusual, and has often occurred, and has often been the subject of litigation, and has been as often reformed and corrected by the courts. And when this error is corrected according to the plain intention of the parties, the Alexandria canal being put where it really is, on the east, and not on the south, where it really is not, and the old Military road being stated on the south, where it really is, and not on the east, where it is not, everything is plain.

The parties could not reasonably be held to have intended to locate the canal on the south, because it was actually on the east, and the same may be said of the old Military road. In other words, substitute east and south, one for the other, so that the true description may appear, and we have a tract of land bounded by the lands of Addison on the north and west, and on the east by the Alexandria canal, and on the south by the old Military road, part of Abingdon, and west of the turnpike, but not bounded by the turnpike. There is nothing in the deed to indicate the turnpike as one of the boundaries; hut, in fact, other and different boundaries are given, one of which excludes the turnpike as a boundary.

It is well settled that when a general description of the land intended to b.e conveyed is given in a deed, and also the particular boundaries, the latter are to govern; and we do not understand that this is denied by either side to this dispute, numerous authorities are cited thereto by the learned counsel of the appellee. Tyler’s Law of Boundaries, p. 130; Thorndike v. Richards, 1 Shepley’s R. 430; Woodman v. Lane, 7 N. H. R. 241; Makeplace v. Bancroft, 12 Mass. R. 469; 1 Greenlf. on Ev. 301. The last-named author, speaking upon this subject, said :

“ There is another class of cases so nearly allied to these (ambiquifas patens) as to require mention in this place — namely, those in which, upon applying the instrument to its subject-matter, it appears that, in relation to the subject, whether person or thing, the description in it is true in part, but not true in every particular. The rule in such cases is derived from the maxim, “ Falsa demonstrado non nocet, cum de corpore constat.”

Here so much of the description as is false is rejected, and the instrument will take effect if a sufficient description remains to ascertain its application-; it is essential that enough remains to show plainly the intent. .

“ The rule,” said Mr. Justice .Parke, “ is clearly settled that when there is a sufficient description set forth of premises, by giving the particular name of a close or otherwise, we may reject a false demonstration; but that-if the premises be described in general terms, and a particular description be added, the latter controls the former.” It is not, however, because one part of the description is placed first and the other last in- the sentence, but'bccause, taking the whole together, that intention is manifest. For, indeed, it is vain to imagine one part before another; for, though words can neither he spoken nor written at once, yet the mind of the author comprehends them at once, which gives vitam et moduin to the sentence.”

And if the -language of the instrument- is susceptible of more than one construction, the intent of the parties, to he collected from the whole instrument, must govern, and, in order to ascertain that intent, the court may take into consideration the extrinsic circumstances authorizing the transaction, the situation of the parties, and the subject-matter of the instrument. This is the established rule of the common law. Tyler on Bound., p. 131.

The quantity of land stated in the deed appears to have fallen short in actual measurement, hut that cannot alter the question of boundary as set forth in- the deed. Words indicating quantity in the descriptive part, of the deed, when conflicting with words of a añore accurate description, yield. Quantity is regarded as the least certain mode of describing land, and hence must yield to description by boundaries and distances. Id., 131.

Extrinsic evidence, it is said, is always admissible to explain the calls of a deed, for the purpose of their application to the subject-matter, and thus to give effect to the deed.

And when the true location of the land in dispute has been ascertained, parol evidence is admissible to show the proper location of all the descriptive locations and 'calls of the deed, to the end of determining whether or not the land in dispute passed by it, and thus give effect to the true intent of the parties. Reamer v. Neswith, 34 Cal. R. 574; Broom’s Leg. Max. 269.

These principles are well settled by the decision of this court. In the ease of Herbert and Wife v. Wise, 3 Call, 242, it was shown that such mistakes as leaving out lines, putting north for south, and east for west, were to be corrected by parol evidence of the true intent of the parties. See, also, Shaw v. Clements, 1 Call, 438; Preston’s Heirs v. Bowmar, 6 Wheat. 582; Newsom v. Pryor, 7 Wheat. 10; Elliott v. Horton, 28 Gratt. 766; Baker v. Seekright, 1 H. & M. 177; Dogan v. Seekright, 4 H. & M. 125; Pasley v. English, 5 Gratt. 141.

Mr. Minor says the two rules of most general application in construing writings ¿re (1) that they shall, if possible, be so interpreted ut res magis valent quampereat, so that they shall have some effect rather than none; and (2) that such meaning shall be given to them as may carry out and make effectual the intention of the parties. 2 Minor’s Inst. 948; Henick v. Hodkins, 23 Maine, 217; Peaseley v. Gee, 19 N. H. 278; Inge v. Garrett, 38 Ind. 96; Yoder v. Swope, 3 Bibb, 304; Gano v. Aldridge, 27 Ind.; Doe v. Porter, 3 Ark., p. 18; Jones v. Smith, 72 N. Y. 205; Faltem v. Sawyers, 2 Hawkes, 296; Bell v. Hickman, 6 Henn. 398; Koinigheim v. Miles, 67 Tex. 113; Schamvald v. Rosenstein, 5 N. Y. 766.

The plaintiff in error, Hunter, conveyed the land west of the canal, and the grantee took nothing more, by the deed of October 4th, 1871, and the plaintiff was entitled to a judgment in his favor for the premises described in the declaration, and the circuit court of Alexandria county erred in rendering judgment in favor of the defendant, and the same will be reversed and annulled, and such'judgment rendered here as the said circuit court ought to have rendered.

Judgment reversed.