Means v. De La Vergne

50 Mo. 343 | Mo. | 1872

Bliss, Judge,

delivered the opinion of the court.

The plaintiff brought ejectment, and founded his right to enter upon a lease which the court held to be void from defect of description. It appears that he had sold his farm near the town of Clinton, upon which he had resided for many years, to one Boyer, and the latter, as part consideration, executed to him a life lease beginning as follows: “This indenture, made this May 3d, 1865, between Jacob Boyer, Sr., of the town of Bryan, county of Williams and State of Ohio, and William B. Means, o£ the town of Clinton, county of Henry and State of Missouri, witnesseth: that the said Jacob Boyer, Sr., has this day leased to the said William B. Means the following described lands and premises, to-wit: the dwelling-house now occupied by the said Means, its entire use and control, with the usual appurtenances, the well, the smoke-house and garden, together with one-half .of the land now in cultivation, on the farm now occupied by the said Means, and one-half of the orchard and one-half of the barn ; to have and to hold the same for their use and benefit during the natural life of the said William B. Means and Maria B. Means, his wife,” etc.

This lease was not acknowledged, but-upon the trial the plain-•tiff offered the lease and evidence .to show that the land, of which he sought to recover an undivided half, was embraced in that part of the farm occupied by him in Clinton, Henry county, Missouri, then under cultivation, and that' defendant purchased of said Boyer with notice. The court, however, held that the description of the property sought to be leased was so vague and uncertain that nothing passed by the instrument, and gave judgment for defendant.

In this the court committed error. Id cerium est quod cerium reddi potest. There is no difficulty in locating the premises described by the deed. Applying the description, which is necessary in all deeds, is very different from contradicting or varying the contents of a written instrument. The intent of the lessor is clear — to demise certain fields which were on the farm then occupied by the lessee, who resided in Clinton. Here is no ambiguity, any more than though the property had been design nated by the numbers of a lot, or by being bounded on its several sides by A.-, B. and C. As the lot sued for did not bear the same ■description, it was necessary to show by parol that it was embraced in the lands so leased, and this was done.

As the case must be remanded, it is proper to remark that the instructions asked at the former trial, in the question of notice, did not conform to our holdings in Maupin v. Emmons, 47 Mo. 304, and other cases there cited.

Reversed and remanded.

The other judges concur.