Swan v. New England Mortgage & Security Co. ( 1898 )

Whitfield, J.,

delivered the opinion of the court.

The description, “Fractional N. W. corner of S. W. -J of section 6, T. 13, R. 6, containing 33 acres,” is sufficiently certain. A corner is not a square. In the measurement and description of land it has a fixed meaning. As held in Bowers v. Chambers, 53 Miss., 267, where the description was “ 14 acres off of the N. E. corner, E. 1, ’ ’ etc. A corner is “ a base point from which two sides of the land conveyed shall extend an equal distance, so as to include, by parallel lines, the quantity conveyed. ” Counsel for appellee concede that the description would be good, but for the use of the word “fractional.” They make the word ‘‘ fractional ’ ’ qualify the word ‘ ‘ corner, ’ ’ making corner describe the space between the lines, and argue from that assumed premise, with perfect accuracy, that a fractional corner — using corner in that sense — may be so made fractional or broken or irregular, in many ways, and hence it is absolutely uncertain what land was meant to be conveyed, But, as said, a corner, in this use of the word, does not mean a square, but ‘ £ a base point ’ ’ from which to start the measurement. A corner is insusceptible of ‘ £ fractional ’ ’ division into parts, and hence the word £ £ fractional ’ ’ cannot possibly, in the right use of words, qualify £ ‘ corner. ” A ‘£ fractional corner ’ ’ is a contradiction in terms. The premise being unsound, the argument falls to the ground. The word £ 1 fractional ’ ’ here can properly enough, under the authority of Seldon v. Coffee, 55 Miss., 41, be made to qualify the word ££ section,” and by simple tranposition the description would read “N. W. corner of S. W. \ of fractional section 6, containing 33 acres,” which is a good description. Or, fractional being treated as surplusage, qualifying nothing, or a mere general phrase, followed 'by the particular description, the description would be good. There would be authority for this view, construing the instrument, so as, if legally possible, to save it, under 2 Devlin on Deeds, sec. 1040. The natural construction seems to us to be to treat£ £ fractional ’ ’ as meaning the same as fraction, or fractional piece or fractional part, and the description would then convey fraction or fractional part in N. E. corner, etc., containing 33 acres. If reasonably possible, such construction must be given as will uphold the deed, and not impute to the parties the purpose to execute an instrument which is a nullity.

Decree reversed, demurrer overruled cmd cause remmided, with leave to answer in thirty days after filvncj of mandate in court below.