Morse v. Carpenter

19 Vt. 613 | Vt. | 1847

The opinion of the court was delivered by

Royce, Ch. J.

If the description of the grantees was such as to render the deed void, there was error in admitting evidence to ex-" plain and aid that description. But the evidence was rightly admitted, if the ambiguity was legally capable of explanation. The only question, then, is, whether the description was thus fatally defective.'-

A sufficient description of the grantee in a deed is equally indis-" pensable, as that of the subject to be conveyed. And, as instances of incurable uncertainty and defect in this particular, cases are put,- —or recorded in the books, — of a grant, or devise, to one of the'sons' of J. S., — to the poor scholarsoi such a school, — to Üiepoór relations of the grantor, or devisor, &c. These, and the like cases, furnish'illustrations, in reference to the grantee, of the ambignitas patens, strict-’ ly so called, — an ambiguity not removable by.-construction, nor to-be explained by evidence aliunde, without making more, or less, of the instrument, than its terms import. And hence, to make the conveyance effectual in favor of any particular person, by the aid of extrinsic evidence, would be, in the words of Lord Bacon, “ to make that pass without deed, which the law appointetli shall not pass but by deed.”

There is, however, an important difference between a description which is inherently uncertain and indeterminate, and one which is merely imperfect, and capable, on that account, of different applications. To correct the one is, in effecf, to add new terms to the instrument ; while to complete the other is only to ascertain and fix the application of terms already contained in it. Indeed, the most usual and approved description of the grantee, — that which gives his Christian and surname and the town in which he lives, may proveto be imperfect, as others bearing both those names may be living in the same town. And if the Christian name or place of residence be omitted, the description is only rendered the more imperfect; it is less certain than it might be, and usually is, made. But a grantee is still designated, though imperfectly, and,-for aught that the deed discloses, the party accepting the conveyance may be the only person answering the description given. In all these cases, a resort to extraneous facts and circumstances may become necessary, in order to ascertain the individual, to whom the description was intended •to apply ; but it is not perceived, that the greater or less probability ■of this should, in either case, affect the validity of the deed.

It is said by the Master of the Rolls in Colpoys v. Colpoys, Jacob 451, (partially recited in Cowen & Hill’s notes to Philips, p. I860,) that the omission in a will of the Christian name of a devisee, or legatee, does not defeat the bequest; but that evidence is received to identify the person. And I am aware of no decision, which has held otherwise in the case of a deed, A grantee may be described, without even the mention of Christian or surmane, as by his name of office, or dignity, or by the party’s relation to some other person, —as if called the wife, or eldest son, of J. S. All these descriptions are sufficient, on the ground that id cerium est, quod cerium, reddi potest. 4 Kent 462. That the omission of the grantee’s Christian name may leave the description so defective, as to render the conveyance void, is, indeed, asserted by Cruise, in the section referred to by counsel, but asserted in qualified terms. He follows older books, in which it is said, — that the safe way is to set forth both the Christian name and surname ; — “ For where the grant intends to describe tlffe person of the grantee by his proper name, and omits or mistakes his Christian name”, or surname, commonly the deed is void, unless there be some special matter to help it. And yet, if the grant does not intend to describe the grantee by his known name, but by some other matter, there it may be good, by a description of the person without either name of baptism or surname.” Jacob’s Law Diet. Title, Deed.

There is no occasion to speak of a case, where the surname is omitted, or where either name is mistaken and a different one substituted ; for no such case is before us. And when, as in this instance, the surname and place of residence are correctly given, and the Christian name is simply omitted, I should be unwilling to receive these dicta, (not appearing to be founded upon actual adjudications,) as satisfactory authority for pronouncing the deed void. But, taken with the qualifications expressed, they are not, even in terms, opposed to the validity of this deed. Here> is both special matter to help the description, and an evident design to describe the grantees otherwise than in the usual mode of setting out their respective names. The union of their surnames alone in the deed indicated the style and name of a partnership, in which their Christian names would not be expected to appear; and evidence was properly received to verify such indication. That was the name by which .they contracted with the defendant and took his note; and inasmuch as the true surnames constituted the" partnership name, we think the mortgage to secure payment of'the note might well be taken in that name.

Judgment of county court affirmed.