28 A. 18 | N.H. | 1889
The error in the clause of the mortgage that described the land as "situated in said Lyman" was corrected by the accompanying reference to the record of a deed of land situated in Lyman and Lisbon. Colby v. Collins,
Elliot v. Heath,
Atwood v. Atwood, 22 Pick. 283 (decided in 1839), was a writ of dower. In the written demand made by the plaintiff on the defendant for an assignment of dower before suit, the land was described by a reference to a recorded deed in which the defendant was a grantee. The defendant objected to the description, contending that he could not be compelled to go to the registry to ascertain in what land the plaintiff claimed dower. "This description," say the court, "was sufficiently certain. All that is required is, that the description of the land should be such as to give notice to the tenant to what land the demand referred. And as the tenant was a party to the deed referred to, he could be left in no doubt as to the lands in which dower was demanded." The plaintiff claimed dower in land in lots five and six. After verdict for the plaintiff, the defendant moved in arrest of judgment upon the ground that the declaration described the land in lot five by a reference to a deed and to the place where it was recorded. This objection was sustained. "In the description of the land within that lot," say the court, "reference is had to Blinn's deed, and unless the description can be aided by that reference, it is not sufficiently definite and certain. And it is very clear that it cannot be thus aided. Such a reference would be good in a conveyance of the land, or in a demand of dower before action brought. . . . But when lands are demanded, the description of them *163 must be so certain that seizin may be delivered by the sheriff without reference to any description dehors the writ. It is not necessary in every case to describe the land demanded by metes and bounds, but there must be a certain description in the writ itself, and no defect can be cured by a reference to any existing conveyance. As to this part of the demandant's claim, therefore, she is not entitled to judgment. But as to the lands included in No. 6, those, we think, are described with sufficient certainty. The demandant, however, may amend her declaration, or take judgment for dower in lot No. 6."
In Flagg v. Bean,
The question whether land is properly described in pleading by a reference to a deed is not determined by statute or by a special rule relating to this particular question, but by the application of the general rule that procedure may be what justice and convenience require. Boody v. Watson,
A count, in a writ of entry describing the demanded premises as bounded northerly by land of A, easterly by land of B, southerly by land of C, and westerly by land of D, may not be better than a count describing the same premises as land conveyed by E to F. On the north side there may be wild and unoccupied land, conveyed to A by a deed that is not recorded; on the east may be an abandoned farm, which passed to B by recorded devise or unrecorded descent; on the south, a farm may be occupied by a tenant of C, who took it by the levy of an execution; on the west, unoccupied land may belong to D or to G, each claiming a prescriptive title, determinable by a jury trial. When a tract is described by such abuttals in the declaration, judgment, and writ of possession, and objection is first made after judgment, the description cannot be disregarded as immaterial, or because the given boundary cannot be located without a laborious and expensive investigation of the titles and boundaries of four other tracts. A count describing land as Lot 4 in Range 5, and a second count describing it as *164 bounded by a line beginning on the north side of a highway leading from A's saw-mill to B's house at the south-east corner of C's land, and thence running given courses and distances through stakes and stones to the first mentioned bound, may be less useful as a means of finding the land, than a third count referring to a deed. The description given in a deed referred to in pleading may be clear, definite, and full, or ambiguous, indefinite, and scant. If it is sufficient, and the deed is in the defendant's possession, or if he is the register in whose office it is recorded in the book and on the page referred to, the fact may be found at the trial term that he was properly referred to the deed or record. If the description in the deed is insufficient, or if it would be unreasonably inconvenient for him to find the deed or go to the registry, the fact may be found that the reference does not give him adequate information. A reference to a deed or record, without an averment of facts showing that he has convenient access to it, and without a annexed copy of it or an offer to produce a copy, may be bad pleading. To a count apparently defective in this respect, the defendant may seasonably demur. By a seasonable written motion to strike out the reference, he can obtain a decision of the question whether he is entitled to a better description.
If, as a matter of law or of fact, a reference to a deed could never be a good description in pleading, when its sufficiency was seasonably denied, that circumstance would not affect the result in this case. It does not appear whether, in the foreclosure suit of Clough v. Sherman, there was a trial and a verdict, or whether the judgment against Sherman was rendered on default. If he was defaulted, his position is no better than it would have been after judgment on an adverse verdict. If there was a trial, Clough must have proved that the land described in the deed referred to in his declaration was the Little farm described in the deed referred to in his mortgage, unless Sherman waived his right to require proof of that fact. An objection to such evidence could be made when the evidence was offered, but not after judgment or after verdict. If made when the evidence was offered, it might not be sustained. The only pertinent objection would relate, not to the evidence but to the pleading. Capron v. Anness,
The proposition that in a writ of entry a reference to a deed for a description of the demanded premises is "entirely immaterial and may be disregarded," as if it had been struck out on motion or held bad on demurrer, and that evidence in support of it "is irrelevant and inadmissible" (Flagg v. Bean,
In contemplation of law, Sherman admitted the sufficiency of the reference clause of the declaration by filing a plea that did not deny it, or allowing judgment to go by default, or taking some other course that did not include a seasonable objection. This admission was properly accepted and acted upon in the rendition of the judgment, in which it was considered and adjudged that Clough recover "the tenements aforesaid with the appurtenances," or land otherwise identified by a substantial and formal adoption of the description given in the declaration. The writ of possession properly followed the form and substance of the judgment it was issued to enforce. G. L., c. 235, s. 13. On a writ of error, or other direct attack, the implied admission would be as conclusive as an express agreement of record that the judgment should describe the premises as they were described in the declaration. In the mortgage, the reference to a deed was effective because the contracting parties assented to it, and by following it the land could be found. For a similar reason, the reference to a deed in the foreclosing pleading and process is effective against the party whose admission of its sufficiency is a part of the record
In the present action, the plaintiff's contention is a collateral attack to which the judgment is not open. Fowler v. Brooks,
The fact that Clough did not know, until the foreclosure was completed, that the Little farm was crossed by a town line, is immaterial. The officer caused him to have possession of the land described in the final process: that land was the whole farm, and the lease, under which Sherman occupied it as tenant of Clough during the year after Clough's entry, described it as the Little farm, and as the farm of which Clough took possession by foreclosure.
The decree for a reformation of the mortgage, which the defendants ask in their bill, is not legally necessary, but it may be rendered if it will be practically useful as evidence of their title. In the real action,.there will be
Judgment for the defendants.
BINGHAM, J., did not sit: the others concurred. *167