207 Pa. 95 | Pa. | 1903
Opinion by
This was an action of ejectment in the court below, for twenty-three acres and forty-four perches of land in Hanover township, Luzerne county. It appeared from the evidence, that in 1802, Rufus Bennett, the elder, obtained from the commonwealth, by warrant, survey and patent a tract of land in Hanover township ; the survey and patent name the quantity as 323 acres
“ Being parts of lots No. 28, 11 and 12 in the first division situate in Hanover, one of the seventeen townships in the county of Luzerne. Beginning at a corner, thence by part of lot No. 28 south 55 deg. west 23 2-10 perches to a corner; south 59 deg. west 18 7-10 perches to a corner; thence by part of lots Nos. 11 and 12 south 71 deg. wesir54 perches to a corner; thence by part of No. 12 south 22 1-2 deg. east 314 perches to a corner; thence by parts of lots Nos. 12 and 11 north 67 1-2 deg. east 54 perches to a corner; thence by part of lot No. 11 south 22 1-2 deg. east 564 perches to a corner.” This last is the western short line of the tract and the northern long line. It will be noticed, that the distance of the first measurement of the long line is from the southwest corner of the tract 314 perches to a corner ; at this distance there is no
On the other hand, if the description in the deed of Rufus Bennett to his son be exactly followed, that is if the 314 perch line be stopped at its exact distance, and the line sixty-seven and one half east fifty-four perches be run, that excludes from the son’s deed the twenty-three acres claimed by plaintiffs. This long line, in the deed of the father to the son, if thé same rule in locating the land be followed as would have been followed in a dispute between the patentee and the commonwealth or between one claiming vacant land adjoining the Bennett survey and Bennett, would go to the marked corner and line on the ground and plaintiffs would lose their case; nothing would stop the 314 perch line short of its own monuments on the ground. But that rule does not in all cases and under all circumstances apply in description of grants between individuals. The commonwealth’s grants are founded upon the official returns of its own sworn officers; they are empowered under conditions prescribed by law to make surveys and establish monuments thereof upon the ground and it is right that the commonwealth should be concluded by the acts of its own authorized agents. So here, if the survey by the marked lines on the ground gave to the elder Bennett more land than the return of survey called for, the law has for more than a century held, that as between him and the common
When the elder Bennett conveyed to Rufus H. Bennett, it does not follow, that we must resort to the marks upon the ground made by the commonwealth officer twenty-three years before to ascertain the boundaries of the land conveyedj in case of ambiguity or if the intention be obscure, they may aid us in ascertaining the intention of the grantor, but they do not necessarily control; between individuals, it is the intention that controls, not the rules and practice of the land office, nor the statute authorizing and regulating grants of vacant land by the commonwealth.
In the case before us, the description in the deed to the son does not purport to be the description in the patent; in closely comparing the descriptions, we doubt if the patent was before the scrivener when he drew the deed; the distance of the long line from the first corner is given as 814 perches; it there calls for a corner; why should it not stop there ? Appellant argues, it must go to the short northeast fifty-four perch line in the patent because, that is the call; but no reference to such patent call is made in the deed; it is not to be presumed, that because the elder Bennett got more land than he bargained for from the commonwealth he will give it away to the purchaser from him; rather, the presumption is the contrary. The short line in both patent and deed is answered by the 314 perch line whether it stops at its distance or is extended on sixty-six and one half perches. In either case, the words “ by parts of lots Nos. 12 and 11 north, fifty-seven and one half east, fifty-four perches to a corner ” are answered by running from the end of the distance 314 perches, or by running from the end of the extended line 380 perches.
We think the court properly held that there was a latent ambiguity when the words of the deed were applied to the
In thus holding, we intend no departure from the well established rule that “ courses, calls and distances must give way to the marks found on the ground.” But what marks ? The answer is, those of the survey under consideration, either made for or adopted by the grantor in the deed. But the authorities do not help us, for the answer raises the very question in dispute. And this is the reasoning by the authorities, Blasdell v. Bissell, 6 Pa. 258; Murphy v. Campbell, 4 Pa. 480; Ogden v. Porterfield, 84 Pa. 191, and other cases cited by appellant. The rule which controls this issue is that announced in Hoffman v. Danner, 14 Pa. 25, “ A judge who evades to declare the meaning of a deed or other writing, commits an error, but if the instrument cannot be understood without reference to extraneous facts, the jury must judge of the whole.” Neither the court below at the trial, nor we here can presume, on this evidence, that the grantor perpetrated a fraud by conveying the same land twice; land of which he knew well the quantity and boundaries.
What we have said in substance overrules all of appellant’s assignments of error except the thirteenth and last by which we are again asked to reverse the court below under the act of 1891 for not granting a new trial, and Smith v. Times Pub. Co., 178 Pa. 481, is cited. Time and again we have said, we will not exercise the power conferred by that act except in the most extreme cases. We are very sure this is not an extreme case, but one where the jury might very well on the evidence find the verdict they did.
All the assignments of error are overruled and the judgment' is affirmed.