Wing v. Burgis

13 Me. 111 | Me. | 1836

After a continuance, the opinion was drawn up by

Weston C. J.

The land levied upon, is first described generally as part of lot No. 3, in the first range of lots in Mexico. Then follows a more particular description. It was to begin at a stake and stones standing in the south corner of that part of the lot, which the judgment debtor bought of Harvey Wait. In point of fact, he bought no part of the lot of him. That part of the description then is false. If that is rejected, does enough remain to ascertain the location of the land, upon which the execution was extended ? If the debtor bought no part of the lot of Wait, there could be no southeast corner of that part, so that the words to be rejected are, “bribe southeast corner of that part of the lot which said Burgis purchased of Harvey Wait.’* There would then remain, as a point of beginning, a stake and stones standing, and it becomes a question, where ? The first line was to run from that stake a certain number of rods on the easterly line of the lot. We must look then for the stake and stones in that line. There is no sort of question, as to the true location of this monument, in the east line of No. 3. It is susceptible of the most satisfactory proof, which was offered by the demandant at the trial.

Parol proof is admissible to show the location of a monument, referred to in a deed. Linscott v. Fernald et al. 5 Greenl. 496; Prop. of Claremont v. Carlton, 2 N. H. Rep. 373. The point of beginning being found, every other part of the description, except the part rejected, corresponds precisely with the demand-ant’s claim, and the location of the land may be ascertained with the most perfect certainty, if regard were had merely to the courses and distances. There is besides a monument referred to, at each of the other, three corners, the location of which the demandant offered to prove. We have then the four corners, the location of which is ascertained, the courses and distances of the four sides, the fact that one of the sides is on the east line, and another on the west line of No. 3, and that one of the corners is also the southwest corner of the half lot, the execution debtor bought of Williams and Eustis.

A description, so certain, precise and definite, ought not to be defeated, merely because the appraisers were under a mistake as to the person, of whom the debtor purchased. Errors in description will sometimes creep in, in spite of caro, vigilance and caution ; and deeds arc often drawn by unskilful and inexperienced hands. It is the object of the law to uphold, rather than to defeat, conveyances, if the subject matter, upon which they are to operate, can be ascertained by any fair intendment. The rule by which courts are governed in these cases, is laid down with great clearness by the late Chief Justice of this court, in Vose v. Handy, 2 Greenl. 322. He says, “ where several particulars are named, descriptive of the premises conveyed, if some are false or inconsistent, and the true be sufficient of themselves, they will be retained and the others rejected, in giving a construction to a deed.” Worthington et al. v. Hylyer, 4 Mass. R. 196, is an authority to the same effect.

To give operation to the levy, according to its plain and manifest meaning, we are all of opinion that the words, before adverted to, being false and inconsistent with the other parts of the description, general and particular, should bo rejected; and that there will then remain enough, with such parol proof to locate the monuments, as if legally admissible, to sustain the title of the demandant. The nonsuit is accordingly set aside.

Tenant defaulted.