Moran v. Lezotte
19 N.W. 757
Mich.
1884
Check Treatment
Cooley, C. J.

In September, 1845, Gazette Trombley executed and delivered to Pierre Joseph Bonay a bond, in which, after reciting that “ whereas the said Gazette Trombley has this day sold the above-named Pierre Joseph Bonay forty-three French arpeuts of land, situated and described as follows: Bounded in front on Milk river one and a half French arpents in front; bounded on the north side by lands *85owned by Joseph Caínpau; on the south and rear by lands owned by Gazette Trombley, — this land being part and parcel of a tract of land containing five hundred and thirty acres, granted to the said Gazette Trombley by the President of the TJ. S. A., on the first day of June, 1811; and, whereas, there is due me,” on the purchase money, seventy-nine dollars and fifty cents, — the obligor undertook to convey the §ame to said Bonay when the sum of money mentioned should be paid. A deed was given in performance of this obligation, May 21, 1818, and the land was described therein as “ bounded in front on Milk river, commencing at the corner in front by land owned by Joseph Campau; thence following the river up stream one and a half arpents; thence running to the rear of the said Gazette Trombley land the same width, — containing forty-three French acres, be the same more or less; being part and parcel of a tract of land, containing five hundred and thirty acres, granted to the said Gazette Trombley by the President of the United States on the first day of June, 1811.” The difference between the descriptions in the bond and in the deed will be obvious at a glance ; it consists in the main in this: that in the deed the parcel of land one and a half arpents in width is bounded in the rear “ by lands owned by Gazette Trombley,” while in the deed it is made to run “ to the rear of the said Gazette Trombley land.” By the “Gazette Trombley land ” here it is assumed on both sides that the tract of 530 acres, granted to Trombley in 1811, was intended. Trombley, it appears, had obtained a subsequent grant, bounded on this in the rear.

The present suit grows out of the fact that a parcel of land one and a half arpents in width, on Milk river, and extending the same width to the rear line of the grant of 1811, will contain sixty-five instead of forty-three French acres; and the question now in controversy is whether the deed to Bonay is to be construed as conveying the sixty-five acres, or whether it is to be restricted to forty-three acres. The controversy, therefore, concerns the rear twenty-two acres of the strip of land one and a half arpents wide on Milk river, and extending the same width to the rear line of the grant of 1811. The *86defendant, wlio deduces title through the Bonay deed, is in possession. He claims that the deed gives the rear line of the grant of 1811 as one of the boundaries of the tract conveyed, and he relies upon the familiar rule of construction that quantity must yield to fixed lines and monuments when they conflict, as entitling him to hold the land in dispute. The plaintiffs, who hold conveyances from the heirs of Gazette Trombley, dispute this construction of the Bonay deed, and contend that it conveys forty-three acres, and no-more. And on the trial they offered evidence of acts and declarations of Trombley and Bonay, made after the execution of the deed, tending to show not only that they understood the deed to embrace forty-three ácres only, but that they made practical location of the rear line of the parcel in accordance with that understanding. The circuit judge excluded evidence of declarations, and adopted the construction of the Bonay deed which was contended for by the defendant. This construction necessitated a verdict in the defendant’s favor.

The view which the circuit judge took of the deed assumed that there was an error in the description ; but that, as the front and rear lines, as well as the width of the parcel, were definitely fixed, the error must necessarily bo in the specification of quantity, and consequently, that such specification must be rejected. With that done, all is plain and certain,, and the conclusion of the circuit judge is a necessary one.

But the first question in the case is whether any error exists. We are not lightly to assume this, and all presumptions are against it. It is to be supposed that the parties have intelligently, as well as purposely and without error, made use of every phrase and every word which their deed contains; and in applying the deed to the subject-matter, the court must proceed upon this assumption until it is clearly made to appear that a mistake exists. Every word is to have effect, and to be harmonized with all the rest if that shall be found possible. Shultz v. Young 3 Ired. Law 385 : s. c. 40 Am. Dec. 413; Thatcher v. St. Andrew's Church 37 Mich. 264; Moore v. Griffin 22 Me. 350; Herrick v. Hopkins 23 Me. 217; Watters v. Bredin 70 Penn. St. 235; Richardson *87v. Palmer 38 N. H. 212; Miller v. Bryan 86 N. C. 167; Churchill v. Reamer 8 Bush 256; Alton v. Ill. Transp. Co. 12 Ill. 38: s. c. 52 Am. Dec. 479.

The difficulty here is in harmonizing the part of the description which extends the tract conveyed “ to the rear of the said Gazette Trombley land,” with the part which specifies' the quantity. If the rear line of the tract is to be the rear boundary of the parcel conveyed, this is impossible. The question, then, is whether effect can be given to every part of the description without making the rear line of the tract the rear line of the parcel conveyed. And the solution of this question must depend upon the meaning to be imputed to the words “ to the rear,” as here made use of.

The word “ to,” as commonly made use of, conveys to the mind the idea of movement towards and actually reaching a specified point or object; and the meaning is not satisfied unless the point or object is actually attained. But this use is not universal; the word is sometimes employed in a sense that embraces a part of this idea only, or simply as a word of direction; as we say-to the north or to the south, when we mean in those directions merely ; or as in the army an officer might command a wounded man, or any impedimenta, to be taken to the rear. In many cases the word has a meaning nearly synonymous with “ towards; ” and if in the Bonay deed it has been used in that sense, all the parts of the description can be perfectly harmonized.

Now, there would have been nothing strange in the parties making use of the word in that sense. A strip of and was to be conveyed, parcel of a large tract; the parties had a natural boundary for the front, and they proposed to extend it from this front boundary for a specified width “to the rear ” of the tract, to embrace forty-three acres. When it is ascertained that to extend the parcel to the rear line of the tract is to make it embrace fifty per cent, more land than the quantity mentioned, it seems highly probable that, in the language made use of, they intended only an extension of the side lines in the direction of the rear, but not necessarily to the rear line, unless it should be found.necessary to goto that *88.line in order to include the specified quantity. See, for its analogy, Massey v. Belisle 2 Ired. N. C. L. 170.

But if this supposition be inadmissible, and if it be conceded that the quantity specified and the other particulars given cannot be harmonized, the difficulty in construction is not necessarily solved. It is, no doubt, generally true that where definite lines or definite monuments are given in a conveyance, and the quantity mentioned conflicts with these, the lines or monuments must control. But there is no inflexible rule of law to this effect; nor indeed would such a rule be consistent with the main purpose for which rules of construction are established. The only purpose of rules of construction is to enable us to reach the probable intent of the parties, in order that we may give it effect; and unless they .are somewhat flexible, they would, in many eases, defeat the actual intent, even when upon the face of the instrument it was obvious what the intent was. The errors in déeds are infinite in variety and form; and any one case of mistake may present considerations a little different from any other. The most general rule of all, perhaps, is that in case of conflicting particulars in a description, that particular in respect to which there is the least probability of error should control : Gates v. Lewis 7 Vt. 511; Abbott v. Abbott 53 Me. 356; Piercy v. Crandall 34 Cal. 334 ; Fulwood v. Graham 1 Rich. 491; and this is reasonable, because it is most likely to effectuate the actual intent. In general, fixed lines and monuments are allowed to control quantity, for the reason that these, being known and open to the observation of the senses, are more likely to have been noted by the parties' in the course of their negotiations, and fixed upon in their minds as the important particulars in their conveyance, than the quantity which may or may not have been accurately determined, and often is not specially made prominent. Powell v. Clark 5 Mass. 355; Doe v. Porter 3 Ark. 18: s. c. 36 Am. Dec. 448; Gilman v. Riopelle 18 Mich. 145; Petts v. Gaw 15 Penn. St. 218; Fuller v. Carr 33 N. J. L. 157; Nichols v. Turney 15 Conn. 101; Heaton v. Hodges 14 Me. 66: s. c. 30 Am. Dec. 731, and note, 741.

*89But cases sometimes arise in which in the deed itself it is made apparent that quantity was more prominent in the minds of the parties than any other single particular which is given; and in such a case the purpose in construction, and the general rule that the particulars shall be allowed to control in respect to which there is least probability of error, would both be disregarded if quantity were to be subordinated in constrnction to something else. Such a case, apparently, we have here.

This deed, as has been said, was given in satisfaction of a previous bond. In the description as given in the bond no ambiguity or error appears; the land to be conveyed is simply forty-three French arpents, with a front on Milk river of one and a half arpents, and bounded on the rear by Trombley’s land. Manifestly, in this bond, the quantity specified limits the extension of the lines to the rear: they are to go back far enough, and only far enough, to include' the quantity specified. If the same description had'been carried into the deed, it would be plain that defendant could have no claim to the land in dispute; for apparently Bonay, through whom he claims, never bought it. But the deed merged the previous negotiations of the parties: Howes v. Barker 3 Johns. 506; Kerr v. Galvii Walk. (Miss.) 115: s. c. 12 Am. Dee. 537: Hunt v. Amidon 4 Hill 345 : s. c. 40 Am. Dec. 283; Wells v. Jackson &c. Co. 47 N. H. 235; Vanderkarr v. Thompson 19 Mich. 82; and it is by the deed that parties claiming under the grantee named in it must abide now. But the bond may assist in explaining an ambiguity which is disclosed in the deed; it may lend a probability to the ease of one party or the other, as his case would appear on the face of the deed were that instrument considered independently; it may explain the deed, and enable us to determine what is erroneous in it, though it cannot be allowed to overrule it. And if the bond and the deed are considered together, it would be very clear that only forty-three acres were sold, and only forty-three were intended to be conveyed.

But looking at the deed alone, there would be much reason for the belief that quantity rather than the rear line of *90the tract was the important particular in mind, as that which should determine the rear boundary of the parcel which the one party was conveying and the other receiving; The land at the time was forest: it is not shown that the rear line of the tract was marked out and indicated by monuments; the land sold was of a defined width, and was to extend back into the woods, and contain a specified number of acres. The conclusion would not be an unnatural one that the quantity was in the minds of the parties as that which should limit the extent of the conveyance, rather than some line in the grantor’s woods which was not a line of boundary between himself and any other proprietor, and, for any information we have in this record, may never have been run out or definitely located. It is not likely that the case often arises when quantity should be given controlling effect, but. that it may be and must be in some cases may be seen in Tuxbury v. French 41 Mich. 7, and 44 Mich. 100; Baldwin v. Brown 16 N. Y. 359 ; Higinbotham v. Stoddard 72 N. Y. 94; Nichols v. Turney 15 Conn. 101; Slater v. Rawson 1 Met. 450; Morse v. Rogers 118 Mass. 572; Winans v. Cheney 55 Cal. 567; Herrick v. Sixby L. R. 1 P. C. 436.

But every such ease must be decided upon its specific facts; what we are to do is to ascertain and give effect to the intent, if possible. Jones v. Pashby 48 Mich. 634; Bell v. Sawyer 32 N. H. 72 ; Davis v. Rainsford 17 Mass. 207. When we are satisfied which is the incorrect particular in the description we must reject it. White v. Luning 93 U. S. 514; Anderson v. Baughman 7 Mich. 69 ; Wilt v. Cutler 38 Mich. 189. The repugnancy in this case, if there was any, was between quantity very clearly defined, and a line in the woods not shown to have been seen or located, and for which, as a boundary, no special reason appears. As between these the bond tends very strongly to show, if it does not conclusively establish, that the quantity specified should control. And the plaintiffs should have been allowed to show any acts of the parties done conjointly upon the land' itself, tending to show their understanding of the location of the rear line of the parcel conveyed, and especially [that] any stakes stuck *91by them on a survey or measurement of the side lines of the land conveyed were stuck to indicate boundary, and also the declarations of Bonay, made previous to the time he parted with his title, which were adverse to the claim now set up under him. Cook v. Knowles 38 Mich. 316; Jackson v. Davis 5 Cow. 123 ; Hewlett v. Cock 7 Wend. 371; Nichols v. Turney 15 Conn. 101; Shook v. Pate 50 Ala. 91; Smith v. Powers 15 N. H. 546 ; Morrill v. Foster 33 N. H. 379; Smith v. Forrest 49 N. H. 230; Wood v. Willard 37 Vt. 377; Powers v. Silsby 41 Vt. 288; Treat v. Strickland 24 Me. 239.

It was stated on the argument, as a reason why the plaintiffs could not recover in this case, that on the trial, on their own theory of the case, they gave evidence of title to only a email part of the land in dispute. But this is immaterial now. If they established a title to any part of the land claimed, they would be entitled to recover it.

A new trial must be ordered.

The other Justices concurred.