Wagenblast v. Washburn

12 Cal. 208 | Cal. | 1859

Terry, C. J.,

delivered the opinion of the Court—Baldwin, J., concurring.

This is an action of ejectment for a lot in Sacramento city. The plaintiff and defendant both deraign title through mesne conveyances from one Hein; the defendant’s conveyance being prior in point of date. In this conveyance the premises are described as a lot in Sacramento city, “ described on the map of said city as a part of lot No. 1, in the square between K and L, and Third and Fourth streets, bounded as follows: Commencing at a point sixty feet west of the corner of K and Third streets, thence east on K street twenty feet,” etc.

By reference to the map, it appears that the lot in question lies wholly east of the corner of K and Third streets, and that the description given in the deed would locate the premises in Third street.

The rule is, that effect must be given to the intention of the parties, when it can be gathered from the instrument. Here it appears that the parties intended to convey a portion of lot one. This lot extends eighty feet east from the corner of K and Third streets; excluding the word west, which is evidently a mistake, the description is perfect to all that portion of the lot which lies between the point of beginning and the adjoining lot.

A Court of Equity will relieve against mistake as well as fraud, in a deed or contract in writing, and paroi evidence is admissible to show if it be denied in the answer. (2 John. Ch. 585.) Here the mistake appears upon the face of the paper itself, and does not require to be shown by paroi. The case comes fully within the authority of Jackson v. Marsh, (6 Cowen, 281) which is cited by the appellant.

Judgment is affirmed.