19 N.H. 273 | Superior Court of New Hampshire | 1848
The plaintiff contends, first, that in order to comply with the description in the deed, a line must be run to the Aaron Huntley farm acrossjGurdon Smith’s land, and including a portion of that land with the Asa Gee farm; and second, that the evidence offered at the trial, that the corner marked a. on the plan, was pointed out by the defendant as his boundary, and was the point, therefore, to which the line from a. was to be run, was improperly rejected.
1st. The words “ by said Smith’s land ” have a known and definite meaning. They bound the grantee by the line of Smith’s land. The word “ by ” does not mean “ over ” or “ across,” but along the line of Smith’s land, and such is both its legal and common acceptation. But as it is impossible to run by Smith’s land to the Aaron Huntley farm, and thence easterly by that farm to land of Gardner Huntley, we must look to the remaining description, to ascertain, if possible, the intent of the parties; and we have a guide in the last clause in the description, “ intending to convey the homestead farm of Asa Gee, deceased.” This farm has known and definite boundaries, and this language would, without further description, pass the land which the defendant owned, and which, excepting the boundary by the Aaron Huntley farm, corresponds with the description’in the deed. That being repugnant, from the impossibility of running “ by Smith’s land,” “ to the Aaron Huntley farm,” it seems to us that the general description requires us to re
It is contended that where there is a particular description in a deed, followed by a general description, differing from the former, the particular description shall prevail; and this, without doubt, is the true rule when the particular description is certain and definite. But here the difficulty is with the particular description. That is repugnant with itself. It cannot all stand, and the only question is, which part shall be retained and which rejected. ' This is determined by the further clause, so that a general description does not overrule one more particular, but one part of a particular description concurring with a general description, outweighs another part that has nothing to sustain it, but which is repugnant to all the other parts of the deed.
2d. Parol evidence may be received to show the bounds referred to, and thus show the application of the description to the subject-matter of the grant. If there are two monuments of the same description, or two persons of the same name, parol evidence may be resorted to, to determine which was intended. But where the monuments referred to in a deed are fixed and definite, its extent is to be determined by a reasonable construction of its terms. In such case, extrinsic evidence of intention, as an independent fact, is inadmissible for the purpose of proving that a thing was intended, differing in substance from what was described. Upon the evidence in this case, as to the boundaries described in the deed, we have no doubt that, by a just construction, it embraces only the Asa Gee farm. Parol evidence cannot then be received to show a different intent. It is said that this evidence was offered to show a practical construction given by the parties themselves. That conversation, however, seems to have been before the deed was given, and no bounds or monuments were erected by the parties, at any time, to govern in its construction. The
If the defendant defrauded the plaintiff by showing a false line, he may be liable in an action for the deceit, but he has no remedy on the covenants in the deed for what the deed does not include.
Judgment on the verdict
