Bell v. Sawyer , 32 N.H. 72 ( 1855 )

Eastman, J.

It is well settled, by repeated decisions in this State, that in a conveyance of land a general description of the premises conveyed may be restricted and restrained by a particular description. Barnard v. Martin, 5 N. H. 536 ; Woodman v. Lane, 7 N. H. 241; Flagg v. Bean, 5 Foster 49.

It is also a well known rule, that where conflicting descriptions cannot be reconciled, that construction must be adopted which best comports with the manifest intention of the parties and the circumstances of the case. Tenney v. Beard, 5 N. H. 58 ; White v. Gay, 9 N. H. 126; Loring v. Norton, 8 Greenl. 61; Clough v. Bowman, 15 N. H. 504.

The description in the mortgage from Cross to Bell, under which the plaintiffs claim, is not altogether clear; and the question is, what construction shall be put upon it ? Is the general description, “ all the homestead farm where the said Cross formerly lived,” in any way limited or explained by the subsequent phraseology which is used ?

Prior to August, 1838, Cross, the mortgager, under whom both parties claim, owned all the premises described in both mortgages, and occupied them as his homestead farm, the whole containing two hundred acres or more.

In August, 1838, he sold about eighty acres of the farm to Paddock, and occupied the balance as his homestead till the spring of 1841, when he removed to Haverhill, and has not lived upon the farm since.

In October, 1841, he leased what he then owned to Knapp, containing one hundred and twenty acres, or more, for three years from the first of January, 1842,

In June, 1843, Paddock reconveyed to Cross the eighty acres.

After these transactions, Cross gave the mortgage to Bell, in July, 1843, and described the property mortgaged as follows: “ All the homestead farm where the said Cross formerly lived, in Piermont, in said county of Grafton, and leased to George Knapp, and purchased of David How and others by deed of September 28,1832, recorded in Grafton registry, lib. 122, fob 303 ; and by Ephraim Cross’s deed to me of December 12, 1837, and recorded in Grafton registry, lib. 146, fob 533, or however otherwise described, containing one hundred and twenty acres, be the same more or less.”

In September, 1844, Cross mortgaged the eighty acres to the defendants, describing the land as that which Paddock had conveyed to him in 1843.

It is for the recovery of these eighty acres that this suit was brought; the plaintiffs contending that this tract was included in and covered by the mortgage to Bell, as well as what was leased to Knapp, while the defendants contend that these eighty acres were not included in the Bell mortgage.

There is no controversy as to the one hundred and twenty acres, which were leased to Knapp, and which embraced the homestead as it existed after 1838 up to June, 1843. And the reference to the purchase of How and Cross in the description does not appear to throw any particular light upon the construction to be given to the description in the mortgage, as it appears by the case that these deeds conveyed other lands than those mentioned in the mortgages, in all about two hundred and seventy-five acres.

The question then is this, are the demanded premises the eighty acres which were mortgaged to the defendants, and which do not form any part of the farm that was leased to Knapp, included in the Bell mortgage ? If so, the demandants are entitled to judgment, that mortgage being prior to the defendants’, and Cross being at the time of the mortgage owner of the premises.

If the description in the mortgage were simply “ all the homestead farm where the said Cross formerly lived, in Piermont,” it would be less free from doubt; though even then it might refer to the homestead as occupied prior to 1838, or to that as occupied by Cross subsequently. The homestead farm where Cross formerly lived, in Piermont, included about two hundred acres prior to 1838, and about one hundred and twenty after that time; but inasmuch as at the time when the mortgage was given, Cross owned the whole two hundred acres, and had once occupied the same, such a description could well enough be held to cover all of the farm as it existed and was occupied prior to 1838. But, when we take into consideration that at the time the mortgage was given the lease to Knapp was in force ; that that lease covered the homestead as it existed between 1838 and 1841, and was the homestead on which Cross last resided, in Piermont; and when we consider the further significant fact that the quantity of land stated in the mortgage as conveyed, is one hundred and twenty acres, being the same quantity as that contained in the lease, we think that the proper construction to be put upon the description in the mortgage is, that the eighty acres are not included in the conveyance, and that they were not' intended to he. It was the homestead that was leased to George Knapp, and which contained one hundred and twenty acres, that was mortgaged to Bell, and not the homestead as it existed prior to 1838, and which contained two hundred acres.

Taking the whole description together, “ all the homestead farm, leased to George Knapp, &c., containing one hundred and twenty acres,” &c., and all the facts stated in the case, we think there can be little doubt that the construction which we have stated is the correct one; and, according to the provisions of the case, there must be

Judgment for the defendants.