32 N.H. 268 | N.H. | 1855
The demandant declares for forty acres of land, more or less, of lot No. 97, in the 2d division in Barnstead. The case was turned into an agreed one at the trial, and we take the evidence as finding the facts.
The first step in the demandant’s title is a devise from Benjamin Winkley to the demandant, of “ thirty-six acres, more or less, in lot 37 in the 2d division in Barnstead, being same I purchased of John Peavey.”
It is apparent that here is a radical difference between the description of the premises demanded and those contained in the devise; the land demanded being a part of lot No. 97, and that bequeathed being a part of lot No. 37.
The plaintiff contends that there is a latent ambiguity in the devise, and that the testator intended to bequeath to him the land in lot 97, as set forth in his declaration, and not 37. To prove this, parol evidence was introduced on the trial, tending to show that the lands occupied by Peavey were a part of 97 in the 2d division, and that there is no such lot as 37 in the 2d division in that town.
Several definitions of a latent ambiguity have been given by different writers, which are doubtless familiar to the profession.
Sugden, in his work on vendors, has laid down as concise and perhaps as clear and practical a definition as is to be found in any treatise upon the subject. “ A latent ambiguity,” he says, u is that which seems certain, and without ambiguity for anything that appears upon the instrument, but there is some collateral matter out of the deed, that breeds the ambiguity.” Sugden on Vendors 101.
There is nothing ambiguous in the terms of this devise, but the evidence shows that, as it stands, it cannot take effect, for there is no such lot as No. 37 in the 2d division. The ambiguity is latent; shown so to be by the evidence; and if that stands well with the words of the will, it will be competent, as showing the meaning and intention of the testator.
/Without going into any extended examination of the question ¡of latent ambiguity at the present time, it is sufficient for the present case to say that it appears to come very properly under the rule of falsa demonstratio non nocet; the principle being, that if there is a sufficient description of the land devised, or, of the person of the devisee intended by the testator, independent of the erroneous description, the will will take effect. Selwood v. Mildmay, 3 Ves., Jr. 306; Goodtitle v. Southern, 1 Maule & Selwyn 299; Day v. Trigg, 1 P. Wms. 286; Miller v. Travers, 8 Bingham 244 ; Lush v. Douse, 4 Wendell 313 ; Worthington v. Hylyer, 4 Mass. 196 ; Loomis v. Jackson, 19 Johns. 449 ; Trustees v. Peaslee, 15 N. H. 317; Lathrop v. Blake, 3 Foster 46.
In Boardman v. Reed, 6 Peters 326, the land was described in a patent as lying in the county of M., and further described by reference to natural monuments; and it appeared that the land described by the monuments was in the county of H., and not of M., and the court held that that part of the description which related to the county should be rejected, and that the patent was not made void by the mistake.
By rejecting the words and figures, “ in lot 37,” in this devise, it will stand thus, “ thirty-six acres, more or less, in 2d division in Barnstead, being same I purchased of John Peavey.” What the testator purchased of Peavey is shown to be in the 2d division ; is bounded, and answers in all respects to the description in the devise, except the number of the lot. The extrinsic evidence thus manifestly shows what must have been the intention of the testator, and, both upon the doctrine of the authorities and the justice of the case, we think the devise should be made to take effect.
The next link in the demandant’s title which appears to require some examination, is the conveyance by the administratrix of H. Mellen to Hale and Green, in November, 1815. A due appointment of the administratrix was shown, and regular license to sell real estate; but no petition for license, or notice to the heirs, or other proceedings in relation to the sale, were proved.
It is unnecessary to say to what conclusion we might arrive upon this point, were the proceedings and sale of recent date. This sale took place forty years ago; and after such a lapse of time it will be presumed that the necessary and proper steps were taken to make the sale regular and legal, where possession follows.
Greenleaf says that where an authority is given by law to executors, administrators, guardians, or other officers, to make sales of lands upon being duly licensed by the courts, and they are required to advertise the sales in a particular manner, and to observe other formalities in their proceedings, the lapse of sufficient time (which in most cases is fixed at thirty years) raises a conclusive presumption that all the legal formalities of the sale were observed. 1 Greenl. on Ev., § 20.
Without tracing the title back further than this sale in 1815, we find that in 1826 an entry was made under G. W. F. Mellen, who had the deed of the premises, and that he caused the lines to be run out and spotted in 1829, and cut upon the premises either that year or the following. Peavey, who held the title from 1834 to 1839, cut wood and hoop-poles upon the lot, and Winkley, who held by deed from Peavey from 1839 to the time of his death, in 1850, cut his yearly stock of wood upon the land.
This occupation, with these conveyances, are sufficient to give title to the plaintiff against all who can show no better right to the lot. Has the tenant shown such a right ? We think not.
He derives his title from Benjamin Winkley, the plaintiff’s devisor, as collector of taxes in 1805. The description of the premises is, nineteen acres of land out of lot 97, in common and undivided, being the same lot that was formerly owned by Hale and others.
We do not propose to consider the question whether or not this deed was void for uncertainty, although the decision in Haven v. Cram, 1 N. H. 93, would seem to show that it was. In that case it wTas held that the conveyance of a constable, who sold part of a lot of land for taxes, and described it in his deed as “ a certain tract of land, part of lot No. 300, containing 250 acres,” was void. And it was said that the deeds of an officer, acting on behalf of the public, and conveying lands not his own, by virtue of a public law, will not be construed to transfer any
This deed might perhaps answer as showing a color of title, had the land ever been located, and possession accompanied the location. But there is no evidence of any location, nor of any possession under this deed, or under those conveyances founded, upon it, till 1828 — two years after the entry of the demandant under the Mellen deed.
The cutting of a few hoop poles in 1805 by the son of J. Gr. Kaime, after his death, without any claim of title, cannot be regarded as an entry or possession ; especially as nothing further was done upon the lot till 1828.
We might remark, further, that the reference in the collector’s deed to the lands as being occupied by Hale and others, coupled with the evidence showing that Hale and others held in 1790 seizin of a part of lot 97, not including these premises, would seem to show that this deed, if it conveyed any thing, covered land not held by the demandant.
The tenant, then, not showing either title or possession paramount to that of the demandant, must fail, and according to the provisions of the case there must be
Judgment for the plaintiff.