Madden v. Tucker , 46 Me. 367 ( 1859 )

The opinion of the Court was delivered by

Cutting, J.

On November 24, 1840, Tucker conveyed to Madden, “a certain lot, piece or parcel of land situate in said Cherryfield, and containing fifty acres, and bounded on the east by the Narraguagus river, and on the north by the farm on which Stephen O. Madden now lives. The land which is hereby conveyed is the north part of the McKay farm, (so called.)”

It appears that, at the time of the conveyance, Tucker was the owner of two lots; viz., a front lot, No. 62, bounded on the east by the Narraguagus river, and another lot, No. 80, in the rear of the front lot, and originally occupied by one Bracey; each containing one hundred acres, and both bounded on the north by the farm of Stephen O. Madden, (according to the testimony of Daniel McLaughlin,) claiming title to the north half of the two lots by a deed from Gowen W. and George W. McKay, dated March 29, 1836, and to the south half of the same lots, by deed from Israel Dinsmore and William Freeman, bearing date August 16, 1836, who claimed under a deed from the McKays.

At the trial, a question arose as to what constituted “ the McKay farm, (so called,)” on November 24, 1840. It was contended by Tucker that it embraced the north half of both lots, and by Madden that it was the whole of the front lot. The verdict has settled that issue in favor of the latter, which, on examining the evidence under the motion, we see no cause to disturb, unless the ruling of the presiding Judge in excluding certain evidence offered in defence, was erroneous.

The deed from the McKays to Dinsmore and Freeman, of May 30, 1835, after describing certain exterior lines of the south half of the two lots, contains this language, “ meaning and intending to convey the south half of all the farm whereon we now live, together with one half of the Bracey lot, so called.”

The deed from the above grantees to Tucker, (this defendant,) of August 16, 1836, conveys one hundred acres, “being the same tract or parcel of land which we purchased of Gowen W. McKay and Geo. W. McKay, as their deed to us, now on record, will more particularly show.” Both deeds were witnessed by, and acknowledged before, Caleb Burbank, Esq. When Tucker took this deed, it may be presumed that he knew' the record title to which therein he was referred; and it was the south half of all the farm on which we (the McKays) now live, together with (or in addition thereto) one half of the Bracey lot, so called, — “ together” being a term of exclusion and not inclusion, in reference to the farm.

The case finds that, when the deed of the north half, from the McKays to Tucker, of March 29, 1836, before referred to, had been introduced by the defendant and proved to have been shown to Mr. Burbank when he wrote the deed from Tucker to Madden/' the following question was asked defendant by his counsel, viz.: — Was Mr. Burbank directed to draw a deed of the north half of the land described in the said deed ?” which, together with a similar question before asked, as to what the parties directed him to do, were ruled inadmissible.

It needs no labored argument or citation of authorities to establish the correctness of the rule of law which excluded such testimony; otherwise, titles by deed, however solemnly executed, would become as evanescent as human memory, and landmarks become only idealities.

Again, exception is taken, because the Judge instructed the jury, “ that the plaintiff was entitled, by his deed, to the north half of the McKay farm, as it was known and called at the time the deed was given, and not as the parties understood McKay farm to be, unless it was so known and called.”

This instruction was substantially the language of the deed, especially its concluding and most important part of the description; for the former part bounded the grant on the east by the Narraguagus river, and on the north by the S. O. Madden lot, which description alone would answer equally as well the hypothesis of either party as to those boundaries. We must then discover the intention of the parties'in the concluding part, which, by the term “ farm” gives such a certain description as will determine the extent of the lot conveyed. Abbott v. Pike, 33 Maine, 204; Chesley v. Holmes, 40 Maine, 536. Taking, therefore, the whole description together, there is no ambiguity in the deed, — the grantor conveyed the north half of the McKay farm, so called; and what were the boundaries of the “ McKay farm, so called,” was a question of fact for the jury, as in all cases of boundaries. The ambiguity is wholly in the conflict of the testimony as to the boundaries; or, in other words, whether both or only one of the lots was called the McKay farm, there being no controversy as to the exterior lines of either lot. The legal interpretation of the term “ so called,” is not what I or we say, bnt what .the public generally say, and such was virtually the language of the grantor in his deed, and what the jury were instructed to find. It is not the duty of courts to unsettle all record titles to real estate, Tjy violating rules of law, because some unskillful, ignorant or misinformed scrivener may not have obeyed, in every particular, his instructions.

As to the case of Webster v. Emery, 42 Maine, 204, cited and relied upon by defendant’s counsel, if it means that a monument, answering in all particulars the call in the deed, is to be removed by parol testimony, and another monument, dissimilar, erected in a different place, then it cannot be law. But, if it means that, where there are two monuments, either of which may answer the call, it becomes a question of fact for the jury, it is law and in harmony with the instructions of the presiding Judge in this case.

Exceptions and motion overruled.

Judgment on the verdict.

Tenney, O. J., and Rice, Appleton, May, and Kent, J. J., concurred.