Pierce v. Faunce

37 Me. 63 | Me. | 1853

Howard, J.

— The plaintiff claims title under a levy of execution upon the locus in quo, as the property of William Prince, in July, 1842. The defendant not denying the acts of alleged trespass, justifies under one deriving title from Prince, in 1836. It is assumed by the parties that the premises are a part, at least, of “ lot marked G, in Hebron.”

In 1814, Dunn conveyed to Waterman by deed of general warranty, “ a certain tract of land situated in Hebron, (now Oxford,) in the county of Oxford, containing sixty-seven acres, more or less, and being on the north side of the lot marked “ G-,” in said Hebron, with privilege of a road or roads, through the same, and being the same land I purchased of Joshua Albee and Godfrey Grosvenor.” It appears by the plan and survey submitted, that lot G, contained sixty-seven acres only.

In the absence of a more definite description, or of other monuments, the quantity of land named must govern in the construction of the deed. The terms “more or less” neither limit nor extend the grant, but are generally used, in the absence of definite knowledge of the boundaries and extent of the land intended to be conveyed, to exclude a construction that the quantity named in the conveyance should be conclusive upon the parties. Cutts v. King, 5 Maine, 482; Blaney v. Rice, 20 Pick. 62. The conveyance of Dunn would, consequently, embrace the whole of lot G.

Waterman, in 1817, by a like deed of warranty conveyed to Prince, describing the premises in the same terms used in the deed of Dunn to himself, and closing the description with, “it being the same land I purchased of James Dunn.” By that conveyance, Prince acquired title to all the land in lot G-. This is not controverted; but in 1836, he conveyed to Mary Chipman, by deed with general covenants of warranty, “ a certain tract of land situated in said Oxford, containing twenty-five acres, more or less, and being on the north side of the lot marked G, in said Oxford, with the privilege of a road or roads, if necessary, through the same, it' being the same land I purchased, and was deeded to me by Robert Waterman.”

It is a legal maxim, that every man’s grant shall be taken by construction of law most forcibly against himself. Coke,. 1 Inst. 183, a. By referring to the deed of Waterman to him, Prince made that a part of his conveyance; and it must be so regarded by legal construction. Field v. Huston, 21 Maine, 69; Marr v. Hobson, 22 Maine, 321. The description, though not agreeing in all respects, is sufficiently definite to show what estate was intended to be conveyed; and is broad enough to embrace the whole tract, contained in lot G. The number of acres mentioned, when qualified by the terms more or less, furnish but slight evidence of the extent of the grant; and when followed, as in the deed from Prince, by a more definite description, it may be regarded as an estimate merely, by the parties, of the quantity of land in the absence of reliable information, rather than a designation of the extent of the tract conveyed. Particular recitals do not restrict a grant, when the general language of the conveyance is intelligible and effective.

There is not satisfactory evidence, that the parties gave a practical construction to the conveyance of Prince, by establishing monuments or boundaries, and their acts and declarations do not affect its legal construction. The declarations of Prince and Chipman, after they had conveyed, tending to show the ' extent of their claims, and the construction of their deeds, were not admissible. The fence across lot G, was not proved to have been a division fence, limiting the occupancy of the different tenants; nor was the occupation, and cutting trees upon the land by Prince, proved to have been under claim of title, with knowledge of those claiming through his conveyance. By that conveyance, Prince parted with his title to lot G-, and the subsequent levy upon it, by his creditor was inoperative. The plaintiff having neither title, nor possession, cannot maintain the action of trespass quare clausum fregit. Plaintiff nonsuit.

Shepley, O. J., and Tenney and Wells, J. J., concurred. Appleton, J., dissented.