Thompson v. Jones

4 Wis. 106 | Wis. | 1856

By the Court,

Cole, J.

This was an action of ejectment, brought by Jones against the plaintiff in error, to recover the possession of a certain lot in the village of Prairieville. To. make out his title, Jones in the court below offered in evidence a deed dated Nov. 7th, 1844, from Elijah Thompson and wife to him, in which the premises conveyed are described as follows:

“ All that certain piece or parcel of land, being a part of the northwest quarter of section three, of town six north, of range nineteen, east, described as follows: commencing at a point fifty feet westerly of the southwest corner of a lot in possession of Otis E. Curtis, which point is on the continuation of the straight lino bounding the south side of said lot belonging to Otis E. Cur* tis, and running from said point on the continuation of said line westerly fifty feet, and parallel with the surveyor’s quarter sec* tion line ; thence, at right angle, northerly one hundred and fifty feet to quarter section line; thence, at right angle, easterly fifty feet on said quarter section line; thence, at right angle, southerly one hundred and fifty feet to the place of beginning: which lot is bounded on the west by a lot owned by Michael Thompson, and on the east by a lot owned by E. W. Gfoodenow.”

Upon the trial of the cause, parol testimony was admitted to show that the premises described in the deed were situated on the southeast quarter of section three, instead of the northwest quarter as stated in the deed ; and the principal, and indeed we may say the only question in this case, is 'whether such evidence was admissible for that purpose.

The rule that governs in the construction of grants, and which appears to be decisive upon this point, is laid down in a variety of cases as follows :

“If there are certain particulars, one sufficiently ascertained, which designate the thing intended to be granted, the addition of a circumstance false or mistaken, will not frustrate the grant.” Jackson vs. Clark, 7 J. R. 216 ; Loomis vs. Jackson 19 id. 448; Worthington et al. ex. vs. Wylyer, 4 Mass. 198; Jackson ex dem Smith vs. Marsh, 6 Cowen, 281. The lessee of Benjamin Eggleston, et al. vs. Moses Bradford, 10 Ohio R. 312 ; Wendell vs. Jackson ex dem.

In the case under consideration, there is no difficulty whatever in ascertaining the premises intended to be conveyed, for they are very accurately and minutely described by metes and bounds, courses and distances, and also the ownership of the adjoining lots given; providing the word northwest is rejected from the description. The section, town and range are correct, but a mistake is made in the quarter section. We do not think that mistake should control the other description in the deed, and vitiate what is sufficiently certain without it.

If effect shall be given to that particular of the description, the grant becomes void. The ground of argument assumed by tbe counsel for the plaintiffs in error is, that there is no latent ambiguity in the deed which requires explanation by extrinsic evidence. But that is a mistake. The lot of Otis E. Curtis is upon the southeast, instead of the northwest quarter of the section. So is the lot owned by Michael Thompson, and the one owned by E. W. Groodenow, referred to and mentioned in the deed. It is by these adjoining lots, that the one intended to be conveyed is ascertained. We, therefore, conclude that the rule of construction, as well as the suggestions of common sense, requires that the word northwest should be rejected from the description of the deed.

The first instruction asked for by the plaintiffs in error, in the court below, was substantially given in the charge of the judge. The jury were left to determine from the evidence, the meaning of the words “ Curtis’ house lot,” in the deed from Cutler to Michael Thompson, and also to fix and ascertain the starting point in that deed.

The second instruction has already been passed upon in considering the main question in the case.

The judgment of the Circuit Court is affirmed.