134 A. 520 | N.H. | 1926
The case involves the construction to be given the words "extending in a straight course" in the Leavitt deed as meaning *344 at right angles to the check lines of lot 5 or as meaning in the same direction as the course N. 84 degrees W., which forms either all or a part of the northerly boundary line of the land in lot 7 conveyed by the deed.
The submission of the construction to the jury, by the trial court, does not affect the merits of the motion for a directed verdict. What the deed means and its effect are questions of law or are to be treated as such, and they are accordingly presented here by the exception to the denial of the motion. "The interpretation of the deed is a question of law, in that it is reviewable by this court so that the finding of fact by the trial court as to the intention of the parties may be disregarded." Emery v. Dana,
The deed itself seems equally susceptible of either of the constructions claimed. While the defendant rightly contends that a straight line is the shortest distance between two points, a straight course does not require the meaning of the shortest distance between two lines. It may be straight although diagonal. Maintaining the same direction throughout its course, it is a straight course. The boundary line claimed by the plaintiffs is just as straight as that claimed by the defendant. But because of the ordinary meaning of straight as most direct or shortest, the use of the word in the deed gives it a doubtful meaning. The southerly range line of both lots is admittedly continuous; there is nothing in the deed, however, to show whether the line in lot 7 described by the course N. 84 degrees W. is to be extended from its intersection with the easterly line of lot 5 "in a straight course" across the lot by the most direct way or in continuance of the course. The plaintiffs argue that in the absence of altering language, "extending in a straight course" means "continuing in their courses," but since the words "in a straight course" ordinarily relate to shortest distance, language which may be altering appears. While the extension of a line in the science of mathematics may refer only to its continuance in the same direction, and even conceding this may be its usual meaning, yet a change in direction is not in general meaning inconsistent with extension. If *345 technically so, the deed shows no undertaking of technical description of the area in lot 5. If the words "in a straight course" had been omitted, the plaintiffs' argument would require adoption, but with them, an intention of shortest distance across the lot is at least as probable as one of extension in the same direction. Words are to be assumed to have a purpose, and since the words "in a straight course" are equally applicable to modify or to support the theory of continuance in the same direction, the deed itself offers no satisfactory solution of the doubt. If the words "in the same course" had been used in place of the phrase employed, their supporting weight would be decisive; and the failure to use them is at least sufficient to create an ambiguity calling for competent extrinsic evidence for such light as it may throw on the situation.
The northerly line in lot 7 described by the course N. 84 degrees W. and about one hundred and eight rods in length is only a part of the northerly boundary of the land in that lot. Two other lines of about eight and thirty-two rods in respective length make up the rest of such boundary. If the reference in the deed to the northerly line of the land in lot 7 were construed to include its entire distance of these three lines, as opposite to the southerly line, a line across lot 5 parallel with its southerly line would require adoption, since the continuation of a line made up of three sections, each having a different direction, would be impossible of application, and extension by making the northerly line across lot 5 parallel with its southerly line would be the only alternative. But there is at best nothing in the deed from which it may be inferred that the entire northerly boundary was meant rather than the part of it which is greatest in distance and which runs to lot 7. There is hence again an ambiguity which the deed on its face does not resolve.
The extrinsic evidence which the record presents points out nothing of value to show what the deed means, unless as to one item. The deed shows that the land in lot 7 had been in part at least improved. It mentions buildings on the land, the boundaries are clearly defined, and the acreage is definitely stated. Lot 5 appears never to have been improved and never to have had much value except for the growth on such parts of it as are capable of sustaining growth. Much of it was heath land, and swampy except in dry periods. Where the land was elevated above the swamp level, the growth had value. A part of the disputed area is thus elevated, but this fact is indeterminative of a purpose to include it in, or exclude it from, the land conveyed. The evidence is not *346 satisfactory to show that any lines were run or bounds set by the parties, or that any agreement was made between them, by or from which the northerly line may be established.
The only evidence of any significance is the statement of acreage in the Leavitt mortgage, which is equivalent to a claim nearly contemporaneous with the deed of 1869 that his southerly boundary ran as the defendant now claims. To give him one hundred and twenty-five acres would limit the plaintiffs' acreage to about seventy, whereas to give the plaintiffs the disputed area would cut down the one hundred and twenty-five acres to ninety-five. The use of the words "more or less" does not militate against this claim. As meaning about or approximately, they denote Leavitt's understanding and claim of substantially the acreage stated. The character of the lot, which to this day has made walls or fences on it impractical, and the lack of a survey and defined bounds help to give the statement of variation of acreage its ordinary narrowed scope of limited rather than general indefiniteness. See 3 Words Phrases, 2d ed., 446, 447. The statement of acreage would have an empty meaning if the qualification of "more or less" were construed to admit a variation of thirty acres either way from the stated number of one hundred and twenty-five. The variation is too disproportionate to be reasonable. When it is considered that lots in Effingham usually overrun their assumed acreage, the argument for a smaller acreage than that stated in the deed becomes still further weakened, since the approximating phrase in the light of that circumstance would more especially refer to increased rather than lessened acreage.
The competency of this evidence as the statement either of an owner or of one familiar with the land, when not available as a witness, to show where a boundary in fact is, is well settled. Keefe v. Railroad,
The issue here is not of a disputed boundary. It is what the deed means. It is an application of the deed to the land, and not of the land to the deed. While the object of the inquiry is to determine where the boundary is, the inquiry itself is what the requirements of the deed are rather than what the situation of the land is. The line as claimed by Leavitt is the true line if the deed is to be construed as so giving it. Otherwise it is not. There is no difficulty in locating and establishing the line when it is ascertained how the *347
deed requires it to be run. The boundary is doubtful only because the meaning of the language of the deed is doubtful, and the problem is not how or where to establish bounds answering the calls of the deed but to say what the calls of the deed are. "What the monument is is determined by the deed, but where it is is a question of fact to be determined by the jury." Coburn v. Coxeter,
While in a case of ambiguity" . . . it is the duty of the court to place itself as nearly as possible in the situation of the parties at the time the instrument was made, that it may gather their intention from the language used, viewed in the light of the surrounding circumstances" (Weed v. Woods,
The question being what intention was expressed by the deed (Pillsbury v. Elliott,
But Leavitt's claim of acreage in his remaining land was an act or statement to which the grantee of the 1869 deed was not a party. There is no evidence that the latter knew of the claim, or that he in any way acquiesced in it. In the absence of such evidence *348
Leavitt's claim becomes immaterial. Heywood v. Company,
Also, as a practical objection, the admission of the evidence for purposes of construction "might permit a grantor to alter the boundary of the lot he had granted, to the injury of his grantee, by a subsequent act." Barrett v. Murphy,
What is to be determined is the meaning of the deed, and not the parties' understanding of its meaning. What they in fact intended cannot control or affect the language used when its meaning is ascertained. The process of construction builds upon the language to develop the intention, and not upon the intention to interpret the language. The meaning of the language being established, an actual intention of a different meaning may not be shown except in an effort to reform the instrument. "The belief of the parties, as to the effect of the deed, could neither add to nor diminish its force." Furbush v. Goodwin,
The evidence of the Leavitt mortgage being accordingly incompetent *349
in construing the deed,, and the record showing no other extrinsic evidence satisfactory to explain the ambiguity of the language of the deed, the rights of the parties must be settled by resort to the rule of contra proferentem. Canning v. Pinkham,
"`Where all other rules of exposition fail' is a description (less appropriate now than formerly) of the situation of a case in which there is no preponderance of evidence in favor of either party." Smith v. Furbish,
The case was tried on the theory that the construction of the Leavitt deed is decisive. No claim of adverse possession or agreement of owners at any time since then to change the line as thereby established was made, and the case was submitted solely on the issue of the boundary between the parties as called for by the deed. To such submission the defendant did not object. The evidence of a new line is not sufficiently convincing to hold that it was conclusively established, and the motion for a directed verdict on that ground was properly denied.
The result dispenses with consideration of the exceptions to evidence.
Judgment for the plaintiffs.
BRANCH, J. did not sit: the others concurred. *350