Getchell v. Whittemore , 1881 Me. LEXIS 104 ( 1881 )

DaNfokth, J.

This is a real action involving the title to a portion only of the land described in the writ. That portion is the lot marked upon the accompanying plan, "S. TI. Whittemore homestead.” The remainder of the land described, it is conceded, belongs to the plaintiffs. The defendant is in possession, and defends as to the lot in dispute on the ground of a prior mortgage to other parties, and an entire want of title in the plaintiffs. Whether this mortgage is prior to any title in the plaintiffs, is not material in this case, as the defendant shows no claim under it, unless possibly the right of redemption, and that would not avail him, if the plaintiffs’ deed covers it. So that the only question presented is, whether the plaintiffs have shown a bettor title to this lot in question, than the possession of the defendant.

To sustain their title, the plaintiffs put in evidence a mortgage deed from the defendant to themselves, duly executed and delivered with a notice of foreclosure. The answer to this is, that it does not cover the lot in dispute, and this is the only question at issue.

The description in the deed gives no metes or bounds, but so far as is material to this case describes the premises, as "being the same . . which were conveyed to me by Urban L. Hitchcock and his wife, Mary (x. Hitchcock, by deed dated July 16, 1855, . . to which deed .... reference may he had for a more particular description of the premises hereby intended to he conveyed.” Upon reference to this latter deed, we find a description which includes the lot in question with other land, but also a reservation, having the force of an exception, of four different lots previously sold to different persons by "Boswell Hitchcock.” Three of these lots are not material now, as neither of them are included in the writ in this case. The other alleged to have been sold to this defendant is material, for-that is the one if any were so sold, which is now in question. The case not only fails to show any conveyance from Boswell Hitchcock to this defendant, but shows affirmatively that none such over was made, and for that reason it is claimed that the reservation, so far as it relates to this lot, can have no effect, but leaves it a part of the conveyance in the deed.

But the case further shows that the lot had been previously conveyed, and to S. H. Whittemore, as stated, though the conveyance seems to have been made by Urban L. Hitchcock, and not by Boswell.

Now is this difference in the name of the grantor sufficient to vitiate the description of the lot to be excepted? We think not. It is a familiar principle in the construction of deeds that however false the description may be in its particulars, if there is sufficient of the true remaining, to ascertain fairly what was intended to be conveyed, the false shall be rejected and the true retained. In this case, if the name of the grantor had been omitted, enough would have remained to show the lot intended to be excepted. It would then have plainly appeared that it was the lot formerly sold to Whittemore, and that this very lot was the only one included in the description, which had been so sold. Nor is it probable that the grantees could be led astray by such a mistake. They must have understood that some lot was intended to be excepted from the grant, and the records to which they must go in any event to ascertain what they were getting, would show them with entire certainty the false and the true in the description. It could hardly be possible that they would take a deed with such an exception, without the proper inquiry, and such inquiry made at legitimate sources alone, would lead to certainty. Thus by the deed, aided by the records alone, it is easy to ascertain what was intended to be excepted. The deed itself shows the exception s its extent, even if the mistake had not been made, could be ascertained only from the records, and from them the extent of it is shown without danger of error, even with the wrong name.

Another view of this renders the mistake immaterial, even if otherwise important. The description in the deed to the plaintiff does not refer to the reservation. It conveys the same premises which were conveyed to Whittemore by the deed of Hitchcock and wife, dated "July 16, 1855.” On reference to that deed and the records, it is found that at that date, U. L. Hitchcock had no title to the lot in question. He had previously sold it to the same grantee .to be sure, but nevertheless so conveyed that his deed of July 16, 1855, could not convey it, unless a grantor can convey that to which he has no title. It Is true the defendant owned that lot at the time he gave Ms deed to the plaintiffs, but he bad acquired the title to it, not by the deed of July 16, 1855, but by one of an earlier date. His deed to the plaintiffs therefore does not cover the lot in question, nor by any construction which can be given to its terms does it purport to do so.

As the title of the plaintiffs to the remainder of the lot described in their writ is conceded, the entry must be,

Judgment for the plaintiffs for the land claimed, except the lot mailed on the plan "N. II. Whittemore homestead.”

Appleton, C. J., Virgin, Peters, Libbey and Symonds, JJ., concurred.