Whitney v. Bickford , 69 N.H. 527 ( 1898 )

The plaintiff claims title to the premises in question by prescription and by deed. The finding of the referee that "his possession and occupancy have not been of such a character as to give him title by prescription" disposes of that claim.

Therefore the only question to be considered is whether the deed to the plaintiff includes the land in dispute. The deed, after describing a portion of the homestead farm on the westerly side of the main road, proceeds as follows: "Also the following portions of said homestead farm lying easterly of the main road, viz.," and then describes several tracts of land. The plaintiff claims title under one of these descriptions, which is as follows: "Also all the land lying northeasterly of the several parcels set off to William O. Carlton, as aforesaid, of the land appurtenant to the tavern house, of lands set off to said Quimby and Aldrich, and of land set off to Calvin Aldrich not heretofore conveyed by said Iron Factory Company." The terms of the general clause in the deed plainly express an intention to convey "certain portions of the homestead farm lying easterly of the main road," which are specially described in the clauses that follow. The language used in the descriptive part of the deed, taken in its common and obvious sense, shows that the general clause applies to and limits each of the clauses following it, down to and including the one under which the plaintiff claims. There is nothing to indicate that this clause is an independent one uncontrolled by the general one preceding it. It appears from the case that all the tracts of land described in the clauses following the general one and preceding the one under which the plaintiff claims title were parts of the homestead farm lying easterly of the main road. This shows that no independent clause had interposed to disconnect the general clause from the special one under which the plaintiff claims and free it from the limitation that the land conveyed must be a part of the homestead farm. The disputed premises lie northeasterly of the set-offs enumerated in the deed, and had not been previously conveyed by the grantor. In these respects they answer the requirements of the deed. But they are not a portion of the homestead farm. Applying the general principle applicable to the construction of deeds, that the whole instrument must be construed together, and, if practicable, effect be given to every part of it (Forest v. Jackson, 56 N.H. 357), the plaintiff did not take the land in question under the deed, because it fails to meet the essential requirement that it must be a portion of the homestead farm. In this view, it is unnecessary to consider the other questions raised.

Judgment for the defendant.

All concurred.