Johnson v. Simpson

| N.H. | Jan 15, 1858

Eastman, J.

The description of land in a deed is to be so construed as to give effect, if possible, to the intention of the parties. Bac. Abr., Grant, J.; 2 Roll. Abr. 65 ; Co. Litt. 146; Worthington v. Hylyer, 4 Mass. 196" court="Mass." date_filed="1808-03-15" href="https://app.midpage.ai/document/worthington-v-hylyer-6403190?utm_source=webapp" opinion_id="6403190">4 Mass. 196 ; Lush v. Druse, 4 Wend. 313" court="N.Y. Sup. Ct." date_filed="1830-05-15" href="https://app.midpage.ai/document/lush-v-druse-5513356?utm_source=webapp" opinion_id="5513356">4 Wend. 313, 319 ; White v. Gay, 9 N. H. 131. The very matter and substance of a grant, says Lord Hobart, is nothing else but a declaration of the owner’s will to transfer a thing to another. Hobart 329 ; Bacon’s Abr., Grant, H.

And that this intention may be the more effectually carried out, the facts and circumstances before the parties at the time of the conveyance, so far as they may be ascertained without trespassing upon any of the rules of evidence, are to be examined. Drew v. Drew, 8 Foster 494; Webb v. Stone, 4 Foster 286.

The whole language of a deed is to be construed together, if it may be, in order to ascertain the true construction. Clough v. Bowman, 15 N. H. 504; Webster v. Atkinson, 4 N. H. 26. And effect is to be given to all its parts whenever it can be done. Jackson v. Moore, 6 Cowen 706; Hibbard v. Hurlbut, 10 Vt. 173" court="Vt." date_filed="1838-01-15" href="https://app.midpage.ai/document/hibbard-v-hurlburt-6572005?utm_source=webapp" opinion_id="6572005">10 Vt. 173 ; Bac. Abr., Grant, H.; Child v. Ficket, 4 Greenl. 473.

And in giving a construction to the description in a deed, the language used is to have its natural effect and weight, without being controlled by the particular position in which it is found. Bell, J., in Drew v. Drew, 8 Foster 495.

Where the description consists of several parts, and some of them are incorrect, if it can be ascertained from those which are correct what was intended to be conveyed, the incorrect parts will be rejected and the instrument be made to take effect. Thus in Jackson v. Loomis, 19 Johns. 449" court="N.Y. Sup. Ct." date_filed="1822-04-01" href="https://app.midpage.ai/document/loomis-v-jackson-ex-dem-mnaughton-5474490?utm_source=webapp" opinion_id="5474490">19 Johns. 449, where the lot was described by a wrong number, yet being also described by fixed and known monuments, the court decided that the number of the lot might be rejected. And on the other hand, in Jackson v. March, 6 Cowen 281, where the lot was incorrectly described by its number, but there was a mistake in one of its boundaries, it was held that the lot might be located by its number.

In Lush v. Druse, 4 Wend. 313" court="N.Y. Sup. Ct." date_filed="1830-05-15" href="https://app.midpage.ai/document/lush-v-druse-5513356?utm_source=webapp" opinion_id="5513356">4 Wend. 313, the description was of all that certain lot of land distinguished and known by the name of lot number two, in the division of a tract of land situate, &a., beginning at the south-east corner, &c., and giving boundaries that purported to' run round the lot. It appeared that the lot as bounded was lot number four, in the tract, instead of number two ; that the lessee took possession of number two, which the lessor owned, and the court decided that the boundaries might be rejected, and that the lease was good and operative by the num-her. Savage, 0. J., in giving the opinion of the court says; “ That part of the description which gives the number of the lot is correct; but where the lease describes the lot by metes and bounds, it describes lot number four of the same tract, which was never owned by the lessor, nor in the possession of the lessee or the defendant.” And again: “ The subsequent description by metes and bounds contains premises which the lessor never owned and did not intend to grant; nor did the lessee or the defendant ever suppose that any other premises than lot number two were intended to be included in this lease, nor had they possession of any other premises. Here has been a practical location by the parties, which shows the mistake in the latter part of the description of the premises.”

The principle is thus stated by Parsons, C. J., in Worthington v. Silver, 4 Mass. 196" court="Mass." date_filed="1808-03-15" href="https://app.midpage.ai/document/worthington-v-hylyer-6403190?utm_source=webapp" opinion_id="6403190">4 Mass. 196 : If the description is sufficient to ascertain the estate intended to be conveyed, although the estate will not agree to some of the particulars in the description, yet it shall pass by the description.

Sutherland, J., in Jackson v. Moore, 6 Cowen 717, expresses it thus: If the thing intended to be granted appears clearly and satisfactorily from any part of the description, and other circumstances of description are mentioned which are not applicable to that thing, the grant will not be defeated, but those circumstances will be rejected as false or mistaken.

Lord Coke says: “ The law shall make such construction as the gift by possibility shall take effect.”

The authorities sustaining this general principle are numerous, and generally uniform. To those already cited may be added the following : Touch. 87; Bosworth v. Sturtevant, 2 Cushing 392 ; Vose v. Bradstreet, 14 Shep. 156 ; Emerson v. White, 9 Foster 482; Harvey v. Mitchel, 11 Foster 575; Winkley v. Kaime, 32 N. H. 268; 1 Greenl. on Ev., sec. 301. Many others might also be cited.

In the present case the intention of the parties is perfectly manifest. Simpson intended to convey to Johnson lot 330. Thai was the lot which Simpson owned, which he purchased of Smyth, and which Johnson bought and took possession of, and of which he still remains in possession. And unless there is something in the description of the deed so absolutely controlling that it cannot take effect upon that lot, the intention of the parties must he carried out.

If the description had been, “ a certain piece or lot of land, situated in said Manchester, being the same conveyed to me by Frederick Smyth,” the deed would have been sufficient to pass the land, because the description in Smyth’s deed which was referred to, would have made certain the lot intended ; and that is certain which can be made certain.

If, then, the whole description by boundaries should be rejected, there is a good description left, which the parties have recognised by the practical location and possession of the lot. And the case of Lush v. Druse, as well as some other of the authorities cited, would seem to be very much in point.

Or, if simply the numbers on the east and west sides of the boundaries, with the accompanying words, should be omitted, the description would then stand well. Such was the course taken in Worthington v. Hylyer, 4 Mass. 196 ; and it would appear to be well sanctioned by the other authorities.

By adopting either of the courses suggested, no rule of construction is violated, and the intention of the parties is made effectual.

This conclusion is not in conflict with the rule stated in the plaintiff’s brief, for the description in this deed may be readily distinguished from those of the class there cited.

Entertaining these views, had not the defendant been defaulted he would not be subjected to any damages for a breach of his covenants, and nominal damages are the most that can be assessed.

It may be a question whether the plaintiff, by taking judgment for damages, may not endanger his title to the premises. That question we haye not examined, as it is not presented' by the case ; but we think it one of importance for the plaintiff to consider before he takes judgment for any sum. We shall not therefore make any order to the Common Pleas, but, having expressed our opinion as to the construction to be put upon the description in the deed, we shall simply discharge the case.