5 N.H. 58 | Superior Court of New Hampshire | 1829
The question to be decided in this case is, whether the demanded premises passed by Archibald Stinson’s deed made on the 20th December, 1804 ? The land granted by that deed is described as “a certain tract of land situated and lying in said Dunbarton, it being lot numbered ten in the fifth range.” If this had been all the description, it is clear, that the demanded premises would not have passed by the deed, because those premises are found not to be within the limits of lot numbered ten. But this is not all the description. It is not lot numbered ten, however it may be bounded, that is granted, but lot numbered ten, bounded by certain monuments. The description of the land as a certain lot is, in the very terms of the deed, made subject to the more particular description by monuments, and it is not to be doubted that the latter description, so far as it is intelligible, must be our guide in ascertaining the land intended to be passed. Thus it is certain that two parcels of lot numbered ten, in the possession of Whipple and Sawyer, were not intended to be granted, because the land conveyed is described in the deed as bounding upon those,parcels. So it seems to us to be equally clear, if Mills had owned the land of P. Bailey in the south east corner of lot numbered nine, the granted premises being described as bounding there upon Mills’ land, the land demanded would have passed by the deed. We are not, then, to resort to the description of the land as a particular lot, until driven to it by finding the application of the common rules of construction insufficient to enable us to ascertain by the monuments mentioned in the deed what was intended to be granted. This principle is believed to be sanctioned by common sense and
The question then, is, can the intent of the grantor in this case, be ascertained by the boundaries mentioned in the deed ?
All the grantor’s land in lots numbered nine and ten, lay in one body and the land granted is described in the deed as bounded on all sides by land of other persons. Had there been no mistake as to the owners of the adjoining lands this circumstance would, in our opinion, have been decisive ; and, as it is, it must have great weight. For it is a fair presumption, that the grantor was acquainted with the boundaries of his own land, and it is by no means probable, that he would have described the line which runs west from Oliver Bailey’s land, as running on Mills’ land, if he, in fact intended it to run on his own land. But the supposition that he may have thought that Mills’ land extended to the east line of lot numbered nine is not improbable. Nor is it unlikely that the mention of P. Bailey’s land may have been omitted by mistake. It is a rule of law, that in a deed poll, where there is a doubt, the construction must be against the grantor. 8 Johns. 406; 4 Mass. Rep. 205. As the line running west from 0. Bailey’s land is described in the deed as running on the land of Mills, it seems to us, on the whole to be a fair presumption that the grantor intended to convey all his land down to Mills’ line ; and although there was a mistake as to the extent of Mills’ land, yet this mistake does not affect the construction of the deed, there being enough to shqty, to a reasonable certainty, the intent of the grantor.
Judgment on the verdict
