4 Me. 283 | Me. | 1826
The title of the plaintiffs to the locus in quo can not be sustained upon the ground of disseisin ; inasmuch as their possession has not been uninterrupted; the defendant, Joseph Sedgley, one of the heirs of Robert Sedgley, while his right to enter continued, if he had not conveyed it, having entered upon the premises and exercised acts of ownership over the same, at various periods, by which his seisin was continued, if he had a right to be seised. The plaintiffs must therefore depend upon the title which passed to Stephen Sedgley, by the deed executed to him by the heirs of Robert Sedgley, dated February 2, 1797, all the land therein described having, through certain mesne conveyances, been transferred to the plaintiffs. The place of beginning in this deed is not in controversy. The land was to run thence, upon a west-north-west course, about two hundred poles ; thence southerly sixty seven poles ; thence, east-southeast, about, two hundred and sixteen poles; thence, northerly.
The deed of November thirteenth, 1760, from Nathaniel Jettison to Robert Sedgley, is very explicit in its terms. The south - erly line extends to Magadassel river, and the easterly line, by the water’s edge to the point of beginning ; about which there is no dispute. This important part of the description is omitted in the second deed. If the person who drew the second, had the first deed before him, I cannot account for the omission, but by supposing that it was understood that the two hundred and six teen poles would not, or might not, extend to the river, arid that it was intended that the southerly line should be restricted to the number of poles staled. It is true that, upon this hypothesis, the term, about, is not only without legal effect, but without meaning. I do not deem it necessary, in the decision of this cause to account for its insertion ; but it being found in the first deed, it might have been transcribed therefrom, without adverting to the impropriety of its use; the river, the terminating boundary in the first deed, not being given in the second ; being there, as I appro hend, omitted by design.
If this line, in the deed under which the plaintiffs claim, was intended to run to the river, I do not understand why the closing line should not have been described as running by the water’s edge, as it is in the deed made by Jettison. In the second deed, it is represented as running northerly. Whether this is to be regarded as a due north course, or whether to strike the point begun at, it diverges somewhat therefrom, it carries the idea of a straight line, no intermediate points being given ; whereas a river rarely runs a distance of sixty seven rods, without sinuosities or indentations in its course. In the first deed, the parallel
If possession had gone according to the plaintiff’s claim, and the parties had uniformly acquiesced in their construction, they would have presented a case entitled to favourable consideration, had the extent of their right as deduced from the deed, under which they hold, been susceptible of doubt; but this construction has been disputed and contested, and claims and rights adverse to it, on the part of one of the defendants, asserted.
The pai’ol testimony, as to the conversation which passed between the parties, at the time of the execution of the second deed, I have no doubt was properly rejected by the judge who presided at the trial ; but upon the evidence received, I am of opinion that a verdict should have been directed for the defendant; and that, therefore, the verdict for the plaintiff ought to be set aside, and a new trial granted.
The only serious question in this cause arises upon the construction of the deed from the heirs of Robert Sedgley, to Stephen Sedgley, bearing date Feb. 2, 1797; and is whether it must or ought to be so construed as to convey the same piece of land which was conveyed by Nathaniel Jellison to Robert Sedg-ley bearing date November 13, 1760. If both those deeds are in law to be considered as conveying the same piece of land, then the verdict is right, and the plaintiff is entitled to judgment; for there can be no ground for questioning the correctness of the decision, rejecting the parol evidence, by which the defendant offered to prove what the parties intended should be included in and conveyed by the deed of Feb 2, 1797. There are several particulars in which there is a perfect agreement in the description of the tract conveyed ; and several in which such an agreement is not expressed. The intention of the parties to the latter deed must be gathered from all the language employed in the description of the land, and its contents and boundaries. The first deed begins “on the westerly side of Jlbagadassel river, where the northerly line of a 3200 acre lot 24 strikes sakbriver.” The second deed begins “ at the north-east corner of a 3200 acre lot 24,” making no mention of Magadasset river ; but both parties admit that the place of beginning in both deeds is the same. The first course in the first deed is in these words; — “ and running from thence a west-north-west course, on said northerly line, two hundrec^poles.” The first course in the second deed is in these words; — “thence running a west-north-west course about two hundred poles” ; making no mention of the northerly line of the 3200 acre lot 24. The second course in the first deed is in these words; “ then running a south-south-west course, at right angles with “ said northerly line, sixty seven poles.” The second course in the second deed is in these wordsthence running southerly sixty seven poles.” The third course in the first deed is in these words ; — “then running an east-south-east course, parallel with the northerly line aforesaid, about two hundred and sixteen poles, more or less, to Jlbagadassel river aforesaid.” The third course in the second deed is in these words ; thence running east-southeast about tw o hundred and sixteen poles¿’’ — -making no mention of
The point chiefly relied on by the counsel for the defendants is that the third line is not described as running “ to fíbogadaml river aforesaid,” nor the fourth as running by the “water’s edge,” as well as northerly to the first mentioned bounds. But wc must again notice that in the beginning of the description, nothing is said about «Qbngadasset river, in the second deed,though that is a pari of the description of the place of beginning in the first deed ; and yet the place of beginning is agreed. Does not the omission of the river in this first instance, shew that its omission in the third line was not deemed of any more importance than the other ? And it is acknowledged to be of no importance there. As, by the former deed,the third line of 21G poles was said and supposed to extend to the river, may not its omission be accounted for upon the same grounds, as that of several other descriptive particulars found in the first deed ? Again, the word “ about,” in the third Hue or course,is not without its meaning. It is said that, a line “ about” 216 poles long, no monument being referred to, means 216 poles. Admit this, as a general proposition, to be correct ; yet, in connection with the several other circumstances above mentioned, the word may have been,and probably was used, because the exact distance from or to the river was not known when either deed was written ; whereas, if the intention of the grantor had been, at all events, that the third line or course should stop at the end of the 216 rods, the word “about” was not only superfluous, but improper and deceptive. The second course in the second deed is “southerly.” In the first deed, as already mentioned, it is south-south-west. Yet while the lai •