Doe ex dem. Morton v. Jackson , 9 Miss. 494 ( 1843 )

Mr. Justice Clayton

delivered the opinion of the court.

This was an ejectment brought to recover a lot of ground within, or adjoining the town of Manchester. The plaintiff relied upon a deed from Hiram G. Runnels and others, the original proprietors of the town, in which the property conveyed in said deed was thus described: “ A certain piece or parcel of land, situate on the Yazoo river, in Yazoo county, above the lots and commons of the town of Manchester, as designated on the map thereof, and being the remainder of the tract of land on which said town was laid out, exclusive of lots, commons, streets, &c., being designated more particularly on the map of said town, as swamp land, and a tract not numbered, supposed to contain about one hundred acres, more or less, bounded by the Yazoo river on one side, by the lots, commons and streets of said town on the other side, extending up the river to the lines of the original survey of said tract of land.” The map of the town was introduced and read in the evidence, by which it was shown, that in point of fact there was no land upon it designated as swamp land.

The defendant then offered Hiram G. Runnels, one of the grantors in the deed to plaintiff, as a witness, and asked him “ by what name the ground lying between the town and the river (part of which was the subject of the suit) was known, at the time of the execution of the deed to the plaintiff?” The plaintiff objected to the question, and to the introduction of Runnels as a witness at all; but the court overruled the objection, and directed the witness to answer the question.

A verdict was found for the defendant, and the case brought by writ of error to this court.

Two objections are here urged against the admission of this testimony.

1. That as the grantor in the deed, the witness was incompetent upon the ground of interest. And

. 2. That parol evidence was inadmissible to vary or explain the terms of the deed.

It is important to consider, when an objection is made to a witness upon the ground of interest, in whose behalf he is called. Although, he may be interested in the event of the suit, yet he is competent when his interest is adverse to. the party calling him, 1 Johns. Rep. 149. 2 Ser. & Raw. 415. 3 Vern. 104. 2 Phil. Ev. by Cow. &s Hill, 81. In this instance Runnels was called by the party claiming in opposition to his deed to the lessor of the plaintiff; his interest was therefore adverse to the party who introduced him. If his grantee was defeated, he would be liable upon his covenant of warranty to him; but if his grantee recovered, it does not appear that he would be liable in any way to Jackson. But even if he would, his interest would be balanced between them; and in either of these aspects he was competent.

The other point is equally clear upon the authorities. The testimony in such instances is not introduced to explain, or limit, or vary the deed—but to point out the subject matter on which it is to operate.

The rule is thus laid down by the supreme court of the United States: “ Whenever there is a doubt as to the extent of the subject derived by will, or demised, or sold, it is matter of extrinsic evidence, to show what is intended tobe included under the description as parcel of it.” 13 Peters, 97, Bradby v. Washington Steamboat Company. In 22 Wend. 150, the court says: “You must, in the most accurate description, go out of the instrument in order to apply it to the subject matter of the grant or devise.” In Sanford v. Raihes, 1 Merivale, it is said, “not only to be competent, but necessary to admit extrinsic evidence to ascertain the' fact, and through that medium to ascertain the subject of devise.” See, also, 3 Stark. 1021.

This list of authorities might be much extended; but it is enough to show abundantly, that evidence in this instance, as in cases of boundary, is admissible to give effect to the deed. See Neuman v. Foster’s heirs, 3 How. 390.

The circumstance that the deed recites, that the land was designated on the map as swamp land, when there was no such designation, can have no controlling influence in the cause. “ If there are certain particulars sufficiently ascertained, which designate the thing intended to be granted, the addition of a circumstance, false or mistaken, will not frustrate the grant.” Wilder v. Winne, 6 Cow. 284. See 18 Johns. 81. 19 Ib. 448. Fish v. Hubbard, 21 Wend. The omission upon the map, of what it is referred to as containing, cannot defeat the deed.

On the whole case, we are of opinion that the judgment should be affirmed.