Benson's Lessee v. Musseter , 7 H. & J. 208 ( 1826 )

Buchanan, Ch. J.

delivered the opinion of the Court. It is admitted by counsel, that Gilbert Falconer, under whom the appellant and appellee both claim, died seized of the tract of land called Convenience, and a part of the tract of land called The Resurvey on Wild Cal Hill; that the locations of the two tracts of land conflict; and that that portion of land lying within the outlines of Convenience, which the suit was brought to recover, is embraced by the outlines of that part of The Resurvey on Wild Cat Hill, of which Gilbert Falconer died seized. And the question is, whether his son and devisee Gilbert Falconer, took under the devise to him of Convenience, all the land lying within the outlines of that tract, or only so much as was not covered by The Resurvsy on Wild Cat Hill, the elder tract?

The devise of Convenience being of that tract by name, and of course sufficient to pass all the lands included within its outlines, if there was nothing to control or restrict it to a smaller quantity, and the devise in relation to the part of The Resurvey on Wild Cat Hill, which was owned by Gilbert Falconer, the testator, being also by name, and the outlines of that part of The Resurvey on Wild Cat Hill embracing that portion of land included within the outlines of Convenience, for which the suit was brought, it would follow, that the same land was twice devised; first to Gilbert Falconer, under the devise to him of Convenience; and secondly, to be sold by the executor and executrix of the testator, for the payment of his debts, under the devise in relation to that part of The Resurvey on Wild Cat Hill, of which he died seized. And under a literal application of the old rule, that the last will shall prevail, neither Gilbert Falconer, the devisee of Convenience, nor the appellant, his grantee, would he entitled to any part of the land so devised to be sold for the payment of the debts of the testator.

But considering the appellant, and the defendant who was the purchaser of all the land devised to be sold for the payment of the testator’s debts, as tenants in common of that portion of land affected by the two devises, the appellant could not recover in this action, the only count in the declaration being on a demise of an entirety. For, though under a demise of. an entire tract of land less than the whole ü’act may be recovered, yet on the authority of Carroll & others Lessee vs. Norwood’s heirs, 5 Harr. & Johns. 164, under a declaration on a demise of an entirety, an undivided part cannot be recovered.

But without resorting to this technical doctrine, it appears to us that the appellant is not entitled to recover, on a plain and fair construction of the will of Gilbert Falconer. In the deed to him from Thomas Neill, Convenience is described as containing “two hundred and nineteen acres more or less,” and the part conveyed to him by the same deed, of The Resurvey on Wild Cat Hill, is described as containing “three hundred and nineteen acres more or less;” and in his will he describes the same lands in the same way, probably without knowing that any of the lines interfered with each other; and intending, as it would seem, to dispose of both as he got them, according to their correct locations, whatever they might respectively be, without any very particular regard to the quantity of land that either might contain; but manifesting, by the use of the words “more or less,” in designating the quantity, the supposition that they might not contain the number of acres stated, and leaving those interested to take whatever they might respectively contain, according to their proper relative locations; without intending to direct that either of them should be held, according to the courses and distances expressed in the grant, but that both should pass, according to the legal operation and effect of the respective grants. And the grant of Convenience, being the junior grant, the location of that tract of land is controled by the true original location of The Resurvey on Wild Cat Hill, the elder tract, and by operation of law restricted to contain only so much land as lies clear of the lineé of The Resurvey on Wild Cat Hill, and passed to the devisee Gilbert Falconer, subject to that restriction. For it cannot well be supposed, that if the testator bad intended to give, to the devisee of Convenience all the land embraced by the outlines of that tract, no matter how they might interfere with the lines of The Resurvey on Wild Cat Hill, that he would immediately after, in the same will, and in the very next clause, have made the unrestricted devise he did in relation to his part of the latter tract.

JUDGMENT AFÍTBMED.