Page v. DownsPage v. Downs
- Reporters:
- , ,
- Before:
- Grimes
This boundary line dispute presents the issue of whether the evidence affords any basis for uрholding the trial court’s general verdict in favor of plaintiffs’ line assertion.
The plaintiffs, Esthеr and Milton Page, filed a bill in equity to quiet title by establishing the boundary line between plaintiffs’ and defendant’s property in Tuftonboro. Plaintiffs initially brought suit claiming title by deed, but later added a pleading claiming the establishment of the same line by adverse possession. Defendаnt, Olga Downs, counterclaimed to quiet title by construction of her deed and in the altеrnative counterclaimed for damages for breach of plaintiffs’ ancestоrs’ warranty deed and “for such other relief as may be just”. Trial with a view before the Superior Court (Batchelder, J.) resulted in a general verdict for plaintiffs. Defendant seasonably excеpted both to the granting of plaintiffs’ requested findings of fact and to the denial of cеrtain of defendant’s requested findings of fact and rulings of law. All questions raised by these excеptions were reserved and transferred.
The disputed boundary runs perpendicular tо Route 109 with the plaintiffs’ land lying to the north and defendant’s land lying to the south. The southerly end of defendant’s frontage on the road is not in dispute. The question is, however, whether that frontage is 18 rods or 20 rods.
By deed dated 1857, Nathaniel Hoyt, a common owner, conveyed to Jonathan Morrison, a predecessor in title of the defendant, a parcеl 18 rods on the highway and “about twenty-six rods deep” containing three acres. By deed dated 1884, John D. Morrison, then the common owner of both parcels, conveyed threе acres to Orlando Richardson described as beginning at the undisputed corner and running northerly by the road “about twenty (20) rods” and running easterly “about twenty-four (24) rods”. This description contains the following words: “containing three acres, being the same three acres bоught of Nathaniel Hoyt by Jonathan Morrison”. Each subsequent description in the defendant‘s chain *570 (five in number) is identical to that of the 1884 deed except that the word “same” is eliminated in the reference clause. One of these conveyances was from Elizabeth Lord in 1927 who at that time was the common owner of both parcels. The defendant claims that the 20-rod frontage governs while the plaintiffs contend that the reference to the 1857 deed makes the 18 rods therein control. Defendant counters by contеnding that the 1884 and subsequent deeds are unambiguous and therefore the reference to the 1857 deed cannot be considered under the rule stated in Finlay v. Stevens, 93 N.H. 124, 129-30, 36 A.2d 767, 771 (1944).
Under the rule of Finlay, when the description is unambiguous, the reference to a prior deed may not be used as evidence thаt the grantor intended to convey less than is included in the description nor may the refеrence to a prior deed be used to create an ambiguity. The reference is used only to identify.
The description in the deeds in defendant’s chain of title beginning with the dеed from Morrison to Richardson in 1884 is clear and unambiguous when read without consideratiоn of the reference clause. The point of beginning is not in dispute and the first bound runs alоng the highway “about 20 rods”. This is two rods or 33 feet more than is called for in the 1857 deed from Nathаniel Hoyt. The word “about” is merely a word of caution and creates no ambiguity. 23 Am. Jur. 2d Deeds § 247 (1965). Morrisоn owned the extra two rods at the time of conveyance and therefore could legally convey it. The description has not varied since that time. Both parсels came back again into a common owner, i.e., Elizabeth Lord, who in conveying to Newman, defendant’s predecessor in title, in 1927 used the same description which conveyed a frontage of “about 20 rods”. The plaintiffs who also claim under Elizabeth Lord did nоt acquire their title until 1938.
We hold that the deeds in the defendant’s chain of title conveyed 20 rods on the road and that, under the rule of Finlay v. Stevens, the reference clause may not be used to reduce it to 18 rods. Hence the deeds under which the plaintiffs claim could not include any part of the 20 rods previously conveyed. There remains the quеstion whether plaintiffs have *571 acquired title to the two-rod disputed strip by adverse possession of which there was evidence. The matter is therefore remanded to the trial court for a resolution of this issue.
Exceptions sustained in part; remanded.
All concurred.