Wellington v. Murdough , 41 Me. 281 ( 1856 )

Cutting, J.

The demandant claims the premises in controversy by deed from Nahum French to himself of Sept. 7, 1832, conveying “part of the Nelson tract, (so called,) and being divisional lot numbered 21, agreeably to Joseph Chandler’s plan of said tract, containing one hundred acres more or less.”

“ It is admitted by the parties, that there are in said lots No. 21 and 30, east of it, about 224 acres, said lots together being 360 rods long, instead of 320, as delineated on said plan; and that there never was any line run or marked by said Chandler between said lots, nor any monuments or corners put up by him between said lots to mark the extent of No. 21 easterly, or of No. 30 westerly; said Chandler having made corners on the west end of No. 21, and east end of No. 30.”

Chandler’s plan represents the divisional line between lots 21 and 30 to be equi-distant from the range lines, thereby dividing the surplus of 40 rods equally between the two lots, and consequently represents the “ locus in quo” to be within lot No. 21, and embraced in the demandant’s deed.

But the demandant traces his title through mesne conveyances, from Thomas L. Winthrop, who, by deed of June 29, 1822, conveyed to Joel Wellington “part of the Nelson tract, (so called,) being lots numbered 21, 22, 28, 30, and parts of lots Nos. 27, 33 and 34, on Chandler’s plan of said tract,” and in the deed described the land conveyed specifically by metes and bounds. And it is contended by the counsel for the tenant, that it is to be inferred from such definite description, that lot No. 21 is only 160 rods, while the lot No. 30 is 200 rods in extent; and that the plan used by the conveyancer on that occasion, and referred to as Chandler’s plan, was Hayden’s delineation of it, and introduces testimony, which, if admissible, would seem to establish that fact. In arguendo, we will admit the evidence. If the deed had omitted the more specific description, it might have been void for uncertainty, as to the parts of the lots, so that in order to ascertain what was conveyed, it was necessary to trace, as was done, the exterior boundaries of the tract, which boundaries correspond in every essential particular with Hayden’s plan.

This brings us to the consideration of the Chandler and Hayden plans. The latter is said in ai’gument to be only a delineation of the former. Whether it be so or not, can be determined only by inspection. By such test, it will be found that they present nothing in common, except the numbers of the lots, the range and side lines; the other lines and representations are either additional or wholly variant.

The plan by Hayden purports to give only “ a view” of the lots in controversy, and “ a view of a re-survey” of certain other lots “ to accommodate the settlers thereon.” To view, does not signify to change or reform, much less to obliterate, while a re-survey may denote the subject matter for a new plan. Consequently the Chandler plan has never lost its identity, and as an original must still be recognized as when first certified to the public in 1806.

On March 15, 1828, Joel Wellington conveyed to Nahum French, the demandant’s grantor, by the same description as that contained in the demandant’s deed. At that time Wellington was the owner of lots Nos. 21 and 30, “on Chandler’s plan,” and he deeded the former lot agreeably to that plan, which lot, by that plan, contains one half the space between the range lines, to wit, a lot 180 by 100 rods. Wellington then held the lots represented on two plans, the Chandler plan and the Hayden plan, or Hayden’s “ view,” or “ a view of a re-survey.” If he purchased by the one, it by no means follows, that he could not sell by the other, and although there has been evidence with reference to the plan by which he purchased, none has been offered as to that by which he sold, and if offered must have been excluded as being in conflict with the language of the deed. In 1825, some three years before his conveyance of this lot, he sold to John French the easterly end of lots 22 and 23, “ as re-measured and marked by Charles Hayden” in 1822; then why not, if he would restrict the demandant’s grantor to the re-survey, make use of the same or similar language ?

The subsequent acts and declarations of the parties, as the Court say in Chandler v. McCord, 38 Maine, 564, are not sufficient to destroy or vary their legal rights as exhibited by the deed. According to the agreement of the parties the defendant is to be defaulted.

Tenney, C. J., and Rice, Appleton, and May, J. J., concurred.