Sanborn v. Clough , 40 N.H. 316 ( 1860 )

Sargent, J.

The position taken by the defendants, that in cases of conflicting descriptions of land in the same deed, and in cases where there are two or more monuments or bounds, either of which will answer, parol evidence is admissible to show which was intended; and that in such cases that construction must be adopted which best comports with the intention of the parties and the circumstances of the case, is no doubt well sustained by the authorities which they cite in support of it. But the trouble in this case is, that until the parol testimony, which the defendants propose to introduce, is admitted, there is no occasion for the application of the rule, as, by the terms of the plaintiff’s deed, or the report of the committee, taken alone, there are neither conflicting descriptions of the land, nor does it appear that there are at any point two bounds or monuments, so as to furnish any ground for the introduction of parol evidence. Parol evidence is also admissible to show a latent ambiguity in a deed. In such case it may be made to appear that there are two lines or bounds which will, either of them, answer the description, both of which will alike answer the call in the deed; and then further evidence as to which of these was intended would be competent. But it must appear that they will both answer the call in the deed. But with our view as to the construction of the deed in this case, no door is opened for the introduction of parol evidence upon that ground.

Where the monuments referred to in a deed are fixed and definite, its extent is to be determined by a reasonable construction of its terms, and in such a case extrinsic evidence of intention, as an independent fact, is clearly inadmissible, for the purpose of proving that any thing was intended differing in substance from what was described. Peaslee v. Gee, 19 N. H. 273. The committee set off to Cyrus Clough, No. 7, being a part of the Thomas Clough purchase, so called, beginning at the east corner of one hundred acre lot, No. 1, thence north three hundred and one rods, to the southeast corner of the fourth division lot, No. 70; thence westerly on the divisional line between said purchase and said lot, so far as to make seventy-six rods directly west from said corner, to a stake and stones; thence south, &c. In setting off lot No. 8 the same committee ran up to this stake and stones, the corner of lot No. 7, and thence ran westerly on the line of said purchase to the one hundred acre lot,No.3.

Now, from both these descriptions, where are the stake and stones referred to ? Evidently in the line between the Thomas Clough purchase and lot No. 70 in the fourth division. It is placed distinctly there in setting off both lots, 7 and 8. The north-east corner of lot No. 7 is the south-east corner of said lot No. 70, wherever or whatever that may be. Then, to get the north line of lot No. 7, they run westerly on the divisional line between these two lots, wherever that may be, to a stake and stones ; and lot No. 8 begins at this stake and stones, and thence runs westerly on the same divisional line, or the line of the Clough purchase, &e. The only sentence or expression that can be doubtful, is the one used in describing the north line of lot No. 7; and it will be observed that if this line be run as the defendants claim, due west, &c., but should start from the true corner of lot No. 70 — the only point it can start from according to the report — it will not come near the stake and stones claimed by the defendants as being the north-west corner of lot No. 7. The only way to reach that last mentioned bound is to turn off at another stake, before reaching the corner of lot No. 70, at a bound not called for in the report, but one entirely different from anything mentioned in the report. It will be observed that the easterly line of lot No. 7 runs due north ; a line, therefore, starting from any point in this line and running due west would be at right angles with it. Now the committee do not say that the north line of lot No. 7 is to run directly west, or any given distance, but beginning at the south-west corner of lot No. 70, thence ruuning westerly on the divisional line, &c.; and this line being a crooked line, the points of compass would vary necessarily, and the distance must depend upon the number of curves and the amount of curvature in this line; but following this divisional line westerly, and varying as the line varied, they ran so far as to make seventy-six rods measured on a straight line, and not only so, but on a line running at right angles with the east line of said lot No. 7. Whether the committee knew the exact location of this divisional line all the way, or any of the way, is not at all material; they evidently intended to bound lot No. 7 upon the north by that line ; and whatever the length of the line might be, as measured upon the line itself, and varying as that might vary, it was to be extended far enough westerly so that the north end of the lot should be seventy-six rods wide, measured upon a straight line drawn at right angles with the east line of said lot. This was probably, and it would seem unquestionably the intention of the committee. But admit that the committee supposed that the stake and stones were due west from the south-west corner of lot No. 70, and they intended by that expression to describe the location of the stake and stones rather than to fix the width of lot No. 7 at the north end; and suppose, upon examination, that it should not be found to be due west from said corner of lot No. 70, so as to make a discrepancy here between the descidption in the deed and the position of the bounds upon the land, there would be no occasion for the parol testimony to explain this discrepancy ; for the law does it in advance, and without the aid of such testimony. For the divisional line between certain lots of land, or the line of land of A. B., or the line of land formerly owned by Abial Cooper (Break v. Young, 11 N. H. 485), is held to be a monument which will control courses, as in this case, and distances, too, if necessary, so that whatever the course from one corner to the other, the stake must be in the divisional line'of these lots, according to the report and deed; and any evidence that would show that this bound is not in the divisional line, would simply contradict the plain, fair and unequivocal terms of the report of the committee and the defendant’s deed, and is most clearly inadmissible. All the evidence which the defendants offer, if admitted, would not affect the case, because it fails to show any latent ambiguity in the report or deed. The evidence shows no line that will answer the description, nor any bound that will answer the call in the report or deed, but something different and contradictory. The fact that the committee ran one line or another; that they run a wrong line instead of the right one, as the line between the purchase and lot No. 70, could amount to nothing, since, when they came to make their report, they have made no reference whatever to any such line as ran by them, but have simply fixed the divisional line of the lots as the one by which these parties are to be bounded.

But suppose this testimony to be admitted, and' that it did make it doubtful which of the two lines or bounds was intended, so that it would be competent to inquire into the intentions of the committee who made the partition, can there be a doubt that they intended to bound the parties on the true line of the lot ? Did they intend to divide all the land of Nehemiah Clough among his heirs ? or did they intend to divide most of it, but to leave some narrow strips along the margin of this lot for the heirs and others to quarrel about ? Did they intend to do what they were expressly sent to do — to divide the land, or at least this purchase lot, or did they only intend to divide a part of it ? And suppose they did run many lines, they may, like cautious men, have been suspicious that they had not in all cases found the true line ; and so they said nothing about the lines they had run — made no allusion whatever to them in their report. Not wishiug to mislead others by any mistakes they may have made, when they came to make report they only mention the lines of the lots, and corners of the lots where the lands adjoin other lots, thus avoiding the possibility of mistake or misconstruction. But suppose they stuck a stake in the wrong place by some mistake, is that to avoid the report, or even to throw doubt upon the description contained in it, when, from all the other parts of the report, the thing is made certain ? Nothing is better settled than that where land is found, answering generally the description in the deed, hut incorrectly described in some one or more particulars, the law rejects the erroneous description, if enough remains clearly to ascertain the land.

But suppose that, after inquiry as to the intentions of the parties, no satisfactory answer could he obtained, and the line was still in doubt ? The case finds that Philip C. Clough, this defendant, was the one to whom this lot No. 8 was originally set off; that he conveyed it by a warrantee deed, giving the same general description of the land as that given in the report, and that this land having passed through different hands is now owned by the plaintiff ; so that these parties stand in the relation of grantor and grantee, the plaintiff being the grantee. In Clough v. Bowman, 15 N. H. 504, we find a reiteration of a general principle as old as the common law, that when all other means of ascertaining the true construction of a deed fail, and the doubt still remains, that construction must prevail which is most favorable to the grantee, and of course most unfavorable in this ease to the grantor. So that, in any light in which the. subject can he viewed, it would seem impossible to come to any other conclusion than that there must be

Judgment for the plaintiff.