O'Herrin v. Brooks

| Miss. | Oct 15, 1889

Woods, C. J.,

delivered the opinion of the court.

The contention in this case is as to that part of Block 6, Pinckardia, originally owned by Brown & Johnson, and not embraced within the “little Veranda Block,” on which defendant resides, and to which he claims to hold title under a conveyance, made in 1887, by the heirs and legal representatives of Brown & Johnson, to lot 40, Pinckardia.

On the face of the deed to lot 4, little Veranda Block, made by Brown & Johnson to the appellant, there would seem to be no ground upon which to base appellant’s claim, now asserted to lot 40, block 6, Pinckardia survey. On the agreed statement of facts submitted in the record, there appears equally little ground on which to base this assertion of title to lot 40 — except in one particular, which will be noticed later. The language of appellant’s deed, hereinbefore quoted, contains no intimation of a purpose to convey any part of lot 40, block 6, Pinckardia survey, except so far as lot 4, little Veranda block, might overlap the northern edge of said lot 40. The deed describes the property conveyed to appellant as lot 4, little Veranda; it further describes it as beginning at the corner of lot 3, already sold Mullen, on Walnut street, and running along said street about 56 feet, or to the full extent of said lot (lot 4, little Veranda), and concludes by declaring that the conveyance is intended to cover the whole of said block on the south end, after taking off what had been previously sold. What block is referred to in this concluding sentence ? What block was in the minds of the parties? What block had been created and subdivided into lots 1, 2, 3, and 4 — the latter of which appellant was then having conveyed to her? Evidently the little Veranda block. Indeed, this is so plain that we do not understand counsel for appellant to deny it. The appellant then acquired title to lot 4, little Veranda survey; and if, after taking off the three lots in that block already sold, there should be found to be more than 56 feet front to lot 4 on Walnut street, then this excess was to pass to appellant also.

It is insisted, however, that appellant is entitled to recover, because, as counsel contend, there is a call for a well-known monument on the south side of the property, and that monuments must prevail over courses and distances when there is a discrepancy in courses and distances in descriptions or boundaries.

To this it is to be said that there is no call for any monument in the deed of Brown & Johnson to appellant. There is on the plat attached to McCabe’s deed to lot no. 2 from Brown & Johnson (but which is not referred to in appellant’s deed) an apparent call for the monument known as Castle property. Whatever effect this might have on McCabe’s, it cannot have any in considering appellant’s deed to her purchase, because appellant acquired title to lot 4 in 1862, and McCabe’s deed, or plat, containing the call for Castle property, was not put to record until 1863, and there is no hint of appellant’s ever having seen or heard of this plat when she accepted her deed with its metes and boundaries of lot 4. Nothing is found in the record indicating that appellant had any knowledge of the call for the Castle propery monument on the plat attached to McCabe’s deed when she purchased and took her conveyance to lot no. 4.

Moreover, while it is true that a call for natural or artificial monuments will prevail over courses and distances, in discrepancies in deeds, yet it must not be forgotten that where there is a mistaken call for a monument the rule does not apply. If the reference on McCabe’s plat is thought to be such call for monument, it is quite clear that it is an erroneous call, for South Madison street, as laid down on Pinckard’s survey, and on Winn’s official map of the city of Vicksburg, lies directly between the “little Veranda” block and the “ castle property” monument. Shall this call for a monument be held to literally prevail and embrace South Madison street, or shall it be held a mistaken call for a monument ? Manifestly the latter. Falsa demonstrate non nocet. 16 Gray, 371; 6 Cowen, 283; 29 Me. 182 ; 118 Mass. 578" court="Mass." date_filed="1875-10-23" href="https://app.midpage.ai/document/wilson-v-hildreth-6418265?utm_source=webapp" opinion_id="6418265">118 Mass. 578.

But, further, where lands are platted or mapped and generally known by certain names, or numbers of such plat or map, and a sale is made of some certain lot by name or number, and a discrepancy is found in the conveyance between the call for the certain named or numbered lot and other calls, as for streets or other monuments, what rule shall we apply ? Which call shall prevail ? The call for the lot itself must prevail over any description by courses or distances, or the descriptive particulars, and over other calls for monuments, ordinarily, for the reason that the lot itself, with the name or number by which it is known, is the prominent object, and therfore there is less likelihood of uncertainty in regard to it than in regard to other descriptions, or calls for monuments, which are only employed to identify more particularly the principal object. Nash v. Wilmington, etc., R. R. Co., 57 N. C. 416 ; Rutherford v. Tracey, 48 Mo. 326; Sayers v. City of Lyons, 10 Iowa, 254. Tested by these rules the judgment of the court below is free from error, and it is therefore,

Affirmed.

Miller, Smith & Hirsh, for appellant, filed a suggestion of error and a brief in support thereof, but the court refused to modify its opinion.