Myers v. Ladd

| Ill. | Apr 15, 1861

Caton, C. J.

We think the court erred in excluding the parol evidence offered for the purpose of identifying the property which was actually mortgaged. The mortgage describes the property thus,—“in his mill in Lancaster, in Timber township, Peoria county, State of Illinois, to wit,” and then describes minutely the engine and saw mill. The mortgagee offered to prove that the mortgagor had a mill, four miles from Lancaster, in Timber township, in which was the property described, and that the mortgagor had no other mill in that county, for the purpose of showing that that was the machinery which was mortgaged. This evidence was ruled out. Here was a true description of the property, but containing within it a circumstance, not of the property itself, but of the location of the prop erty. This, when clearly made to appear, should be rejected as surplusage. The description of the property itself was perfect, but there was a mistake as to the geographical position of the mill in which it was situated. Parol evidence was not only admissible, but was absolutely indispensable, to identify the property described in the mortgage, and when that parol evidence did identify the property consistently with the description in the mortgage, that was sufficient. If I give a bill of sale of my black horses, and describe them as being now in my barn, I shall not avoid it by showing that the horses were in the pasture or on the road. The description of the horses being sufficient to enable witnesses acquainted with my stock to identify them, the locality specified would be rejected as surplusage. Nor is this rule confined to personal property. It is equally applicable to real estate. If I sell an estate, and describe it as my dwelling house in which I now reside, situate in the city of Ottawa, I shall not avoid the deed by showing that my residence was outside the city limits. So if a deed describe lands by its correct numbers, and further describe it as being situated in a wrong county, the latter is rejected. The rule is, that where there are two descriptions in a deed, the one as it were super-added to the other, and one description being complete and sufficient of itself, and the other, which is subordinate and superadded, is incorrect, the incorrect description, or feature or circumstance of the description, is rejected as surplusage, and the complete and correct description is allowed to stand alone.

The court erred in rejecting' the evidence offered, and its judgment must be reversed, and the cause remanded.

Judgment reversed,