| N.Y. Sup. Ct. | Apr 1, 1822
The facts in the case are shortly as follows: James Wells, on the 15 th day of August, 1820, executed a mortgage to Malcolm MlNaughton, of a parcel of land in the town of Cambridge, in Washington county, described as being in the second division of a patent granted to Isaac Sawyer and others in that town, and containing 51 acres of land. It was minutely described in the mortgage by metes and bounds, courses and distances. The description stated the line as commencing at a stake and stones, in the south line of the lot, 9 chains.and 52 links westerly from a stake and stones standing near a marked pine tree, and the. termination of every course and distance is denoted to be a stake and stones. Such a lot or parcel of land corresponding, in every respect, with the above description was foupd
The simple question, and it is one not involved in technical learning, or placed beyond the reach of plain and prac-. tical common sense, is, whether M‘Naughton must be deprived of his mortgage, because the lot so perfectly ascertained, and so minutely and accurately described, has been misnamed, and called lot 51, instead of lot 50. There is no evidence or pretence in the case, that Loomis, the subsequent purchaser, was misled, and did not know of the existence of this mortgage. He could not possibly have been misled, if he consulted the registry, (as we are to presume he did,) for he would have found there a mortgage from Wells to Naught on, for the same quantity of land which he purchased, and in the same division of the patent, and containing the same identical description by monuments, courses, and distances. It is impossible to suppose he was mistaken, or that he had not due notice of the mortgage. Wells, the mortgagor, was in possession of this land when he mortgaged to M‘Naughton, and when he afterwards sold to Loomis. He was not in possession of and he never owned any land in lot No. 51. So we are to presume, for no fact of that kind is attempted to be shown, and it ought to have been shown hy Loomis, if he intended to escape from the presumption which now presses irresistibly against him. Then Loomis, the purchaser, must have consulted the record, and must have known of this mortgage. He found the same definite and notorious boundaries, the same courses and distances, the same heaps of stones, the same marked pine tree, and the same quantity of acres; and I have no doubt in my own mind that Loomis purchased with actual knowledge of the mortgage, and with a diminution of
If there be certain particular^ sufficiently ascertained, which designate the thing intended to be granted, the addition of a circumstance false or mistaken, will not frustrate the grant. Thus, says one of the old cases, (Blaque v. Gould, Cro. C. 447. 473.) if there be a devise of a house called the corner house in Andover, in the possession of B. and H., and it turns out that the corner house at Andover was in the possesssion of B. and JV., and not of B. and H., yet it was held to pass, for. the thing was sufficiently ascertained, and the addition of its being in the possession of H. was a mistake. The devise was certain without that addition, and was expounded according to the apparent intent. So, again, (Cro. C. 548.) there was a deed of all that glebe land and tithes lying in Andover, viz : 78 acres of land, lately in the occupation of B., and it happened that the same was never in the occupation of B., yet the learned judges of the K. B., in the time of King Charles I. held, that the land and tithes sufficiently passed, for they said, the addition of a falsity shall never hurt where there was any manner of certainty without it. And in our own time, we have the like rule of construction laid down by the Supreme Court of Massachusetts, in Worthington v. Hylyer. (4 Tyng, 196.) If the description, says Chief Justice Parsons, be 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 conveyance, that the intent of the parties may be effected. Thus, he says, if a man convey his house in D. which formerly belonged to C. the house shall pass if the grantor had but one house in D. because the estate intended to be conveyed is sufficiently ascertained. The case before the Supreme Court in Massachusetts is very much in point. The land was described in a mortgage as all his farm of land in W. on which he lived, containing one hundred acres, with his dwelling house and ham standing
I conclude, that the premises passed by the mortgage; and Loomis, the subsequent purchaser, was bound by the registry bf it, and took subject to thp mortgage. This is equally the law and the equity of the case ; and lam aceordingly of opinion, that the judgment of the Supreme Court ought to be affirmed.
This being the unanimous opinion of the Court, it was thereupon, Ordered, Adjudged, and Decreed, that the judgment of the Supreme Court be, in all things, affirmed, &c.
Judgment of affirmance.