White v. Gay

9 N.H. 126 | Superior Court of New Hampshire | 1837

Upham, J.

This case turns upon the construction to be given to the deed from the Penhallows to Isaac Smith, dated July 2d, 1825.

The deed conveys an undivided portion of a certain lot, specifying the right in which it is situated, and the number of acres it is said to contain. After this description, the following clause is added : “ And is adjoining land of Ebenezer Gay, Mansel Alcock, William Shearer, and Seth Gay and the question arises, whether this is part of the original description of the land, or is merely a specification of additional particulars applicable to the lot.

It is often the case, after giving a full description of land conveyed, the grantor adds, and is the same land conveyed to me by deed of a certain date, recorded in the county records in such a book and page, or other additional matter of information. In this case, after giving a description of the land, a supplementary clause is added, and “is adjoining land of Ebenezer Gay,” (fee. This phraseology does not purport to give the boundaries of the land, but is manifestly, as we think, merely accessory to the principal description.

If this be the true construction of the deed, then a particular lot was designed to be conveyed, and the expression used in such connection is technical, and could mean no other than one, among various lots, duly laid out by some prior survey.

Such being the case, it becomes necessary to ascertain .from other sources, in the deed or elsewhere, what lot is meant, as no number is given. It is defined to be a lot of land adjoining the land of Ebenezer Gay, Mansel Alcock, William Shearer and Seth Gay. This description is applicable to lot number thirty-eight, in all particulars except that it does not adjoin land of Ebenezer Gay; but it is impossible to apply the description to any other lot. The only way in which such description can be made applicable to any tract of land, is to add to number thirty-eight two addi- ' tional gore lots, and part of lot number thirty-nine, making three lots and part of another lot, instead of one, containing in all two hundred and thirty-three acres; but this would overrule what we conceive to be the previous description of the deed, and would render the term lot wholly unmeaning, as used in any technical sense, besides very much exceeding the prescribed quantity of land.

We sometimes use the term lot in a restricted sense, limiting it at the time, as a wood-lot, a house-lot, or store-lot; but where the term is used unqualifiedly, especially if said to be a lot in a certain range, or right, it is almost uniformly used in a technical sense, and means a lot in a township as duly laid out by the original proprietors. Such, we have no doubt, was the intention here; and, number thirty-eight being the only lot to which the description can apply, it must be considered as the lot designed to he conveyed ; and that portion of the description, where it is said to be adjoining land of Ebenezer Gay, is a mistake, and must be rejected.

The well known rule of law is applicable here, that where ( conflicting descriptions cannot be reconciled, that construction f must be adopted which best comports with the manifest in-} tention of the parties, and the circumstances of the case. 8 Green. 61, Loring vs. Norton; 5 N. H. R. 58, Tenney vs. Beard; 4 Green. 429, Preston vs. Bowmar. Where the ^ boundaries mentioned in a deed of conveyance are inconsist- - ent with each other, those are to be retained which best sub- ( serve the prevailing design manifested on the face of the j deed, and the least certainty must yield to the greater cer-f tainty in the description. 2 Barn. & Ald. 625, Cholmondeley vs. Clinton; 6 Cranch 148, Massie vs. Watts; 11 Conn. 335, Benedict vs. Gaylord; 7 Verm. 511, Gates vs. Lewis; 4 Mass. 205, Worthington & als. vs. Hayley & als.

It is also a rule of law, that if an estate is clearly and explicitly described in a deed of conveyance, and a subsequent " clause is introduced, as farther descriptive of the estate, but which is of doubtful import, or repugnant to the first clause, such latter description will be rejected. 3 Pick. 272, Cutler vs. Tufts ; 2 Bos. & Pul. 43, Cartwright vs. Amatt.

These principles sustain the construction we have given to the deed from the Penhallows to Smith, limiting the title of the petitionees, under such deed, to lot numbered thirty-eight. The land, therefore, included in the petition for partition, not having been conveyed by said deed, remained the property of the Penhallows, until conveyed by them to the petitioners, April 3d, 1834. The petitioners are, therefore, entitled to judgment for partition for the interest so conveyed to them, being thirty-three and one-third forty-eighth parts of the same. Also, for their portion of land derived by title from Edward Cutts, being in all forty-one and one-third forty-eighth parts of the land named in the petition.

It has been said, that, if the construction of the deed from Smith is limited to lot numbered thirty-eight, then Seth Gay, the only one of the petitionees who has plead in the case, has no title in the land embraced in the petition, and therefore a verdict should have been taken in his favor; but he should have disclaimed, and have set up no title to the tract. Not having done this, it is too late now to take the exception.

Judgment for partition.