Pipe v. Smith, 4 Colo. 444

4 Colo. 444 | Colo. | 1878

Elbert, J.

The deed made by the probate judge to Loveland excepted from the grant “ what lots have heretofore been conveyed and what now remain in litigation, and the title yet undetermined by the probate judge, holding them in trust for the occupants of the town site of Golden City, under the pre-emption laws of Congress, for the use of the occupants thereof.”

It was competent to make certain the subject-matter of this exception by evidence aliunde.- The exception in the deed being of lands in litigation and undetermined by the probate judge, the record and files in the case of Hine v. Smith, pending before the probate judge at the date of the deed to Loveland, was the best evidence to show what lands were in controversy in that case, with a view of showing the subject-matter of the exception.

We think that the records and files put in evidence sufficiently described and made certain the lands in litigation, and thus definitely ascertained the subject-matter of the exception. The “ written statement” of Smith, and the plat and survey of the surveyor Davis, according to Johnson’s testimony presumably filed by Hine, described by metes and bounds the lands in controversy. It is objected that these documents were not in the case at the date of Loveland’s deed, and cannot be used as evidence against him or his grantees. This is not tenable. They both appear to have been put in and used in the progress of. the litigation for the purpose of accurately and definitely describing the lands litigated. They do not change, but make definite and certain the description of the lands claimed in Hiñe’s petition, which was pending at the date of the deed. They do not substantially enlarge the acreage, for this is named as 28 acres in the summons issued prior to the deed. The plat and survey fix the acreage at 28 30-100 acres ; the statement at 29 65-100 acres. Substantially they describe the same land. The' metes and bounds of the statement include the 28 30-100 acres described in the survey and plat of Davis and one acre more. The deed made by the probate Judge Mahh to the plaintiff Smith as the result of' this litigation, adopts the metes and bounds of the Davis plat and survey, and conveys 28 30-100 acres.

Doubtless any fraudulent change by way of amendment of the pleadings affecting substantially the amount of land in litigation, or shifting the boundaries so as to include other and more valuable lands, would afford grounds for the interposition of a court of equity, but in the absence of any such showing or suspicion of fraud, the files mentioned were admissible as evidence against Loveland and his grantees, for the purpose of showing the subject-matter of the exception in the deed. •

In addition to the record and files in the case of Hiñe v. Smith, parol evidence was introduced for the same purpose-

This is assigned for error.

The rule is, that where general terms of description are used in a contract or conveyance, parol evidence is admissible to apply it to the subject-matter. 1 Gfreenl. on Ev., § 286 et seq., and cases cited.

In the case of Gerrish v. Towne, 3 Gray, 87, Bigelow, J., states the rule more at length, as follows: “Whenever, in a contract or conveyance, an estate is specifically and fully described by monuments, bounds and admeasurements, no evidence de hors the writing can be admitted to\show the intention of the parties in making the contract or conveyance, or to prove what estate is comprehended by the written description. But where general terms only are used to .designate the subject-matter of the agreement or conveyance, or the description is of a nature to call for evidence to ascertain the relative situation, nature and qualities of the estate, then parol evidence is not only admissible, but is absolutely essential to ascertain the true meaning of the instrument, and to determine its true application with reference to extrinsic circumstances and objects. In such cases, parol evidence is not used to vary, contradict or control the written contract of the parties, but to apply it to the subject-matter, and thereby render certain what would otherwise be doubtful and indefinite. For this reason any evidence which tends to indicate the nature of the subject-matter included in a written contract, which would otherwise be uncertain or ambiguous, and to determine its application relatively to other objects, is admissible as affording just means of interpretation of the intention of the parties.”

An exception in a deed is the taking of something out of the thing granted which would otherwise pass by the deed, and, in general terms, it is said that it ought to be stated and described as fully and accurately as if the grantee were the grantor of the thing excepted, and the grantor in the deed were made the grantee in the exception. Whatever may pass by words of grant may be excepted by like words and the same consequences attach to such an exception as would attach had it been a grant. 3 Wash. R. P. 431, 435.

Having reference to the character of an exception in a conveyance, the same general rule as to the admissibility of parol evidence must apply. Where the subject-matter of the exception is described in general terms, parol evidence is admissible to give it effect as if it had been a grant. Applying the rule to the case at bar, the record and files of the court before which the litigation was pending was doubtless the best evidence, but in its absence or incompleteness, parol evidence, under the rule, was admissible for the same purpose.

While it was, perhaps, unnecessary in this case, it was none the less competent, and as a matter of fact corroborated-the evidence offered by the record and files.

There was, therefore, no error in admitting it.

Whether the exception in the deed would be inoperative for want of jurisdiction of the probate judge in the litigation mentioned, we need not determine, as he had jurisdiction both of the subject-matter and the persons. Nor do we see how the failure of both Hiñe and Smith to file their “statements,” as claimants under the statute within the time limited, can affect the case. Firstly, it did not go to the jurisdiction of the court, but to the right of each to recover, and the record could not be questioned in this respect collaterally. Secondly, in our view, the litigation is referred to as matter of description, and the operation of the exception in no wise depended either on the regularity or result of the litigation. It would have been equally operative if both claimants had failed in establishing a right to the land in litigation.

On the trial of this case below, and in argument here, counsel have proceeded on the assumption that the onus was on the plaintiff, and not on the defendant, to show the lands coming within the exception. We have so treated it, because if resolved otherwise it would not change the result, but we are not to be understood as impliedly passing on the question.

Judgment affirmed.