Bell v. Woodward , 46 N.H. 315 ( 1865 )

Nesmith, J.

The plaintiffs, as administrators upon the estate o^' the late Joseph Bell, late of Haverhill, deceased, claim, to foreclose twf 'deeds of mortgage, pux-porting to be made by Joshua Woodward, deceased, to said Joseph Bell, in his lifetime; the first deed being dated Feb. 28, 1842, the second, Sept. 4, 1844. The defendant, by his pleas, denied that said deeds of mortgage included the land, known as the Ladd farm, situate in Haverhill, &c., and moved that this question be tried by the jury; and the same was ordered by the court. The issues, as made, were between plaintiffs as administrators on the one side, and James Woodward alone; Joshua Woodward having previously died.

The case was tried at the late September Term, 1864, and, for the purpose of obtaining a decision of the whole court upon the admissibility of the evidence offered, and rejected, the court, with the assent of counsel, directed a verdict for plaintiffs, which the defendant now moves to set aside.

The material question is upon the construction of the description of the land, embraced in said deeds of mortgage. The first deed has the following language : "All the farm in said Haverhill, lying on both sides of Ladd street, on which I now live, and which I now carry on estimated at 150 acres more or less.” The description in the second mortgage deed omits the words, "and which I noio carry on,” being, in other respects like the first, and designating the land "as the same described in my mortgage deed to said Bell, dated Feb. 28, 1842.” The case finds that one Ward, as early as Nov. 4, 1833, had conveyed to Joshua Woodward his farm in Haverhill with the buildings thereon, estimated to contain 50 acres more or less, and by the same deed, also, about 9 acres of the 100 acre lot, No. 19, being the same that Ezekiel Ladd sold to Moody Ladd. That, in 1836 and ’39, said Joshua purchased other parts of lot No. 19, of Johnson Burbank and Ezekiel Ladd, and that he had long possessed about 8 acres, adjoining one of the aforesaid tracts of land, being part of said lot No. 19, which he claimed to own, but offered no paper title to it. That, on the 23d of November, 1840, Samuel Ladd conveyed to Joshua Woodward, for the consideration of $2550, all his farm in Haverhillj being described as the one on which I now live, and all the same farm on which my father Samuel Ladd lived at the time of his decease, except two small reservations to Cynthia Farnum and Jonathan A. Ladd, amounting to about 4 3-4 acres. Deducting these reservations, the quantity of land by survey, as claimed by plaintiff, was 70 1-4 acres. By the case, it appeared, that, on the day of the purchase, this farm was reconveyed by mortgage by Joshua Woodward to Phillip Gross, and his wife Martha, to secure his promissory note to her dated Nov. 1, 1840, for six hundred dollars, payable in one year. And, on the same 23d day of November, 1840, said Joshua conveyed by mortgage the same premises to Joseph Bell, to secure his promissory note to Mr. Bell of the same date, for $1750, on demand, with interest annually; both of which deeds of mortgage were recorded Nov. 24, 1840, and the latter was marked discharged on the county records, June 7, 1843.

The plaintiffs claimed, under their bill, the aforesaid Ladd farm, embracing the aforesaid 70 1-4 acres of land, together with the Ward farm .also lying south of it, and contiguous to it, including in intervale land 16 acres, 100 rods, and upland also, 15 acres, 30 rods, making in the whole, 31 acres, 130 rods, by actual survey; both of said farms constituting a little inore than 102 acres of land. These lands, plaintiffs say, were the lands intended to be embraced in the description of the afore.said mortgages to Mr. Bell.

On the other hand, the defendant contends that no part of the Samriel Ladd farm was intended by the parties to be embraced in either of said mortgages ; but, that said deeds were intended to embrace solely what was then known as the Ward farm ; and that the Ward farm was made up not only of the aforesaid quantity of 31 acres and 130 rods, but also by the addition of about 90 acres of other outlands, which said Joshua had purchased, as before stated of Burbank, and Ezekiel Ladd, and from the piece held by virtue of his long continued possession. These several tracts combined made up a farm of about 123 acres. Although no part of these outlands were within 51 rods of the 31 acres and 130 rods tract, yet they had been used and enjoyed, as pasture and wood lands, by Joshua Woodward before the purchase of the Ladd farm, and, therefore, were known as part or parcel of the Ward farm.

Defendants alleged that these lands were not encumbered, when the first mortgage was made to Mr. Bell, in February, 1842, while the Ladd farm was then encumbered by previous existing mortgages to Mr. Goss and Mr. Bell to an amount equal to its value. The parties were in conflict, according to the evidence, whether Joshua Woodward carried* on the Ladd farm, at the time of the first mortgage. It was not in dispute, that he lived on the Ward farm, and did carry that on at the date of the execution of both mortgages, while defendant insisted that his father, Joshua Woodward, never lived on the Ladd farm, and never carried it on. Evidence was offered, that, at the date of the first mortgage to Mr. Bell in 1842, one Wiggin did occupy part of the dwelling house on the Ladd farm, under a title from James Woodward.

In construing a description of property granted or devised jn a deed or will, the facts of the case are to be first ascertained, that the instrument may be interpreted with reference to the actual facts which were before the grantor or devisor, because in this way their intention and meaning may thus be most readily and satisfactorily ascertained. The whole language of the deed is to be taken together, and effect, if possible, is to be given to every part. If, by any rational construction, the several parts can be made to harmonize and to consist with the obvious general intent of the maker, there can be no good reason for rejecting any part, or denying to it its legitimate effect. No word or clause is to be rejected or overlooked, if a reasonable and consistent construction can be given to them. Drew v. Drew, 28 N. H. 495; Webster v. Atkinson, 4 N. H. 23; Jackson v. Moore, 6 Cowen 706; Hibbard v. Hurlburt, 10 Vt. 178.

There is another elementary principle applicable to cases of this kind: Thai where the description of the estate intended to be conveyed includes several particulars, all of which are necessary to ascertain the estate to be conveyed, no estate will pass, except such as will agree with the several particulars of the description. Hathaway v. Power, 6 Hill 453; Jackson v. Clark, 7 Johns. 217; Jackson v. Marsh, 6 Cowen 281.

This principle has its modification and limitations-;, as when the description be sufficient to ascertain the estate intended to be conveyed, or the estate is described with sufficient certainty, although it do not agree with some of the particulars in the description, yet it is made to pass by the conveyance. This is under the rule, that falsa demonstratio non nocet, as in the instance of the conveyance of the farm called A., now in the occupation of Id., here the farm is designated correctly as farm A., but the demonstration would be false if C., and not B., was the the occupant, yet it would not vitiate the grant. 4 Kent’s Com. 467; Bosworth v. Sturtevant, 2 Cush. 392; Kimball v. Schoff, 40 N. H. 190; Drew v. Drew, and cases cited there, ante.

Hence, under the aforesaid rule as modified, if the court, under all the proof of the case, should find that, at the time of the delivery of the mortgage deed by Joshua Woodward to Mr. Bell, in February, 1842, Joshua Woodward did not then carry on, the Ladd farm, then this part of the description in the deed might be rejected, but it would be wrong to reject this one particular in the description, if the meaning and obvious intent of the parties can be made by the same language to apply to the lands described in the bill, and in all other respects to consist and harmonize with the other parts of the deed.

Deeds are also to be construed with reference to the actual rightful state of the property at the time of their execution. Or where the language employed is susceptible of more than one interpretation, the court will look at the surrounding circumstances, existing when the deed was made, the situation of the parties and the subject matter of the conveyance. Dunklee v. The Wilton Railroad, 24 N. H. 489; The Win. Lake Comp. v. J. L. Perley, reported in this volume; 2 Cow. 195; 13 Peters 89.

In this case, we have the main or leading description in the deed to consist .in the words "all my farm in Haverhill;” then we have other additional cumulative descriptions, tending to illustrate the subject matter of the grant; but if the court cannot, by a fair and legitimate construction, or use of either description, or by all united, locate with sufficient certainty the land conveyed in the several deeds, then the court will resort to extrinsic or parol testimony, and to the aid of a jury, to ascertain the true intent of the parties, and to locate the lands. Prof. Qreenleaf says? where the language of a deed is doubtful in the description of the land conveyed, parol evidence of the practical interpretation by the acts of the parties is admissible to remove such doubt. 1 Greenleafs Evidence, secs. 293 and 286, and notes. In Reed v. Props. of Locks and Canals, 8 Howard 274, Judge Grier lays down the familiar doctrine, that, though it is the duty of the court to construe a deed, it is the duty of the jury to apply its terms, when thus construed, to the land, and ascertain whether the premises in question are within the description.

This case also falls under that class where the very general description adopted in the deed will apply to two distinct subjects, thus constituting what is well known as a latent ambiguity. Hence, parol evidence becomes admissible to explain them. The ambiguity arising from too great a generality of description may be removed by oral evidence, which restrains, confines and applies that description to a single object, although on the mere comparison of the terms with several objects, they may be equally applicable to more than one. The application of a general description of land in a deed to the subject matter intended to be conveyed, and the determination of the question, whether a particular tract of land is included therein or not, is a question of fact for the jury. Jackson v. Moore, 6 Cow. 722, and note, where the doctrine of parcels or different descriptions is well explained; Pettingill v. Porter, 3 Allen 349; 3 Starkie’s Evidence, 1021; Ryers v. Wheeler, 22 Wend. 148; Paddock v. Fradley, 1 Crompton and Jervis (1 Exchequer) 90. This doctrine is well illustrated by Justice Bigelow, also in Gerrish v. Towne, 3 Gray 88.

Hence the parties to the deeds, or in interest, will be permitted to show, in aid of the interpretation of the instruments, the relative position of the lands, and their boundaries and condition, the mode of their use and iheir occupation, and that they had acquired a local designation or name, by which they were known or distinguished, or whether they were part or parcel of a particular estate. There is nothing, in the legal definition of the word farm, as understood in the common and popular sense of the. word, which countenances the idea that the parts or parcels, of which it is composed, must by necessity adjoin, or be adjacent to each other, or that a separation of one part of the farm from the rest by 51 rods, or even a greater distance, should form an insurmountable, or even a serious objection to its being considered one entire farm. The English definition of the word farm imports all such premises as have been let together. Roberts on Wills, vol. 1, p. 396. In its more general acceptance a "farm” means that which is held by a tenant. 1 Jarman on Wills, 621. Coke gives the derivation of this Saxon term. 1 Coke’s Institutes, 5 A. The vroxñ. farm comprehends many things: for, by the conveyance of a farm, will pass a messuage, arable land, meadow, woodland, &c., thereto belonging, or therewith used. Because the word properly signifies a messuage, with a quantity of demesnes thereto belonging. Cruise Digest Title, Deed, chap. 20, sec. 41; Bouvier Law Dic. Art. Farm.

The American definition of the word corresponds with the English, and, in cases of doubt, it is entirely .consistent with our practice to explain by parol evidence what a particular farm was commonly reputed to include, or rather what belonged to, or was used with it, and what was parcel thereof, or what was known as a house, mill, mill spot, yard, or a factory, eo nomine. 1 Greenleaf’s Evid. secs. 286, 287; Woods v. Sawin, 4 Gray 322; Drew v. Drew, ante.; Old Col. Railroad v. Evans, 6 Gray 25; Moore v. Meacham, 6 Selden 207; Clough v. Bowman, 15 N. H. 504; Fish v. Hubbard, 21 Wend. 651, afid various authorities quoted by defendants’ counsel.

Hence, whether the outlands, being 80 or 90 acres more or less, the nearest part of which was at least 51 rods from the 31 acres and 130 rods, upon which the Ward buildings stood, were in fact parcel of what was called the Ward farm, at the date of the execution of the two mortgage deeds to Mr. Bell by Joshua Woodward, can be shown here by extrinsic evidence, and by those who were then well acquainted with the premises, and we can thus be informed how they had been treated, and whether used as appurtenant to the Ward farm or not.

The defendant contends, that, at the time of the conveyances aforesaid in 1842 and’44, these aforesaid outlands were used by Joshua Woodward as pasture lands, where his cows and other animals were usually kept, and where more or less of his pine wood and timber was cut, and were thus necessarily occupied in connection with the improved homelands and buildings, and so made up a part of the Ward farm. The plaintiffs, on the other hand, contend that these outlands were too remote, situate on another road were used separately, and made no part of any farm, eo nomine, and that it would be repugnant to the deeds to infer that they belonged to the Ward farm.

Plaintiffs also allege, that the following elements in the description in the deeds in question agree with the plaintiffs’ claim, as set out in their bill, embracing the original home farm of Ward and Ladd, and amounting, in quantity, to about 102 acres, viz. :

1. The land at the date of the mortgages was Joshua Woodward’s.

2. It lay all together as one farm not separated by fences.

3. It was all in Haverhill.

4. It was situate on Ladd street and on both sides of that street.

5. Joshua Woodward lived on it.

6. The Ward farm, though measuring somewhat less than thirty-two acres, was estimated in Ward’s deed to Woodward at 50 acres, the Ladd land being actually a little more than double the quantity of the Ward farm, when actual measure was regarded.

To meet the plaintiffs’ construction of these deeds, and to show the probabilities on his side, and to show that the Ward farm with the out-lands in fact made up the description in the deeds, or that this view best meets all the demands or calls of the description in said deeds, the defendant presents the following elements in support of his theory :

1. The land was all in Haverhill.

2. It was at the date of both mortgages owned by Joshua Woodward.

3. It was situate on both sides of Ladd street.

4. It was occupied as one farm, had all the characteristics of one farm, and none of the qualities of a separate farm.

5. Joshua Woodward lived on it.

6. At the date of the first mortgage it was all carried on by him.

7. The Ward farm was called 50 acres instead of 32 acres, which would bring the estimated quantity in the deeds to 140 acres, and, allowing but a slight difference or.addition for the lot bought of Ezekiel Ladd, .and the whole estimated quantity is had.

8. In any event, this estimation gives 20 acres nearer the estimated quantity than the other, (or plaintiffs’,) unless all the 90 acres and the Samuel Ladd farm be included, in which case, the actual quantity would be 40 acres in excess of the 150 acres in the deeds, and, calling the Ward farm 50 acres instead of 32, would make an excess of about 60 acres.

Such are some of the facts and inferences of law arising out of them, presented by the counsel of the respective parties, giving their versions of the descriptions in the deeds in question. The difficulty is, that the several parties, according to their interests, aim to apply their facts and reasoning to different lands, hence they are at variance, both in their premises and conclusions.

Upon the principles before suggested, the language of the deeds in question being doubtful as to lands intended to be conveyed, the court will resort to parol evidence to obtain the practical interpretation thereof, as determined by the acts of the parties themselves, in order to remove such doubts. And it is for the jury to determine upon the weight and application of this kind of evidence.

Where the deed or grant does not contain any certain description, but there is a description by circumstances, and all the circumstances may be essential to distinguish the lands intended to be granted, the law requires all the circumstances to be proved, and will not suffer any lands to pass except those that fall within the terms of the deed.

Vide the aforesaid case of Jackson v. Moore, 6 Cow. 722, where this question'is ably discussed.

Courts will call to their aid acts done under the deed, as a clue to the intention of the parties. Frost v. Spalding, 19 Pick. 445; 16 Johnson 22; 7 East. 199. So the acts of the party may be shown through whom title is claimed. Jackson v. Ogden, 4 Johnson 140. Prof. Greenleaf’s rule is broad. No reason is perceived why every declaration accompanying the act of possession, whether in disparagement of the claimant’s title, or otherwise qualifying his possession, if made in good faith, should not be received as part of the res gestae, leaving its effect to be governed by other rules of evidence. 1 Greenleaf’s Evidence, secs. 109, 189; Fellows v. Fellows, 37 N. H. 86; Hodgdon v. Shannon, 44 N. H. 575.

Under the aforesaid rule, evidence of the acts and declarations'of Joshua and James Woodward, tending to show the character of their occupation, and especially when tending to show whether or not the premises were used and treated as part of the Ward farm, or Ladd farm, or otherwise, becomes competent, as part of the res gestae. So it is important to know how these farms were carried on, and how used. As the occupation upon the evidence was equivocal, evidence of the claims of James and Joshua becomes competent as tending to show the character of the acts of each, whether acts of occupancy for himself or the other. The acts and declarations of tenants of the like character are to the same extent competent. The declarations of a party in possession of lands, as to the nature of his possession, may be given in evidence against all persons claiming under him. Jackson v. Bard, 4 Johns. 230; Jackson v. McCall, 10 Johns. 377.

The testimony of Enoch Wiggin appears to us to be admissible and pertinent, that, as early as 1841, he hired half of the Ladd house of James Woodward, and paid him the rent of the same during his occupation, and also the testimony of others cognizant of these and like facts. The deed from Joshua Woodward to James, of June 9, 1843, appears to us to be admissible, as bearing directly on the second mortgage.

As a defense in this action, and as an answer to plaintiffs’ claim, the defendant would have a right to show the actual title of the premises or Ladd farm in himself, or to be in another person. 2 Greenleaf’s Evidence, sec. 331; Parker v. Prop. Locks, &c., 3 Met. 99. Joshua had at least an equity of redemption in the premises in himself at the time of the conveyance to James. Under the admission of the parties, and the finding of the case, the Goss mortgage and the first mortgage to Mr. Bell were then outstanding incumbrances upon the Ladd estate. It was competent for-James Woodward to fortify his own title, and to show that he purchased in by his own means either of the aforesaid incumbrances, and that he in this way has become subrogated to the original legal rights of the mortgagees, by the assignment of the notes and mortgages to himself, or to either of them, and to fortify the presumption that the occupation was in the true owner. °The mortgage of the Ladd place by James Woodward to Miss Hale, may properly be admitted as evidence of an act of ownership, and may be weighed by the jury, as might the act of paying taxes, or procuring the property to be insured. The testimony of Spalding, therefore, becomes pertinent on this point. Hodgdon v. Shannon, ante.

Can the deposition of Joshua Woodward be used as evidence before the jury ? This deposition was taken before this bill was filed. It was taken under our statute to preserve testimony, inperpeiuam memoriam rei, and with notice to the plaintiffs in interest, and with a cross examination of the deponent. The deponent has since been made one of the defendants in the present bill, arid has since deceased. It was, no doubt, a correct practice to make the original mortgagor in a bill for a foreclosure a party to the bill, or to bring in his representative after his decease. If the heir of the mortgagee brings a bill to foreclose, the executor, as well as heir of the mortgagor, must be made a party. 2 Maddox Chanc. 186; Clarkson v. Boyer, 2 Vernon 66; 2 Equity Abridg. 77; 1 Wash, on Real Actions, 505. This practice exists where such legal representatives have a present interest in the estate before the court. As death abates the suit, so far as such deceased party is concerned, the rule is to summon in the representative of the deceased by a bill of revivor. Wood v. Leland, 1 Met. 387. If Joshua Woodward be regarded by the plaintiffs as a mere nominal party, originally placed as defendant without pecuniary interest in the estate claimed, and if now, as against his representative, they do not seek a decree, then his name should no longer stand on the record, and James Woodward, his co-defendant, would be entitled to use his testimony. 1 Maddox 183; Plummer v. May, 1 Vesey 426.

But, assuming from the argument of plaintiffs that they still intend to bring in the legal representative of Joshua Woodward, and make him a party to these proceedings, we proceed to inquire into the character of the alleged interest of Joshua Woodward in the lands embraced in their bill at the time of filing the same. He would seem to have in himself the equity of redemption in the Ward farm, be the same of more or less value. It also appears, from the deed of Joshua to James Woodward, made June 9, 1843, that James reserved to his father from the land mortgaged to Mr. Bell, "a small piece of land formerly occupied as part of a garden, and the right to pass across the meadow,” meaning the" Ladd meadow, as we suppose. It is apparent that these interests, are not large in a pecuniary sense, still, if suffered to remain in Joshua’s estate, they would, to the extent of their value, operate as a cloud upon the plaintiffs’ title, provided they maintain their title to the premises in their bill. Hence, for the purpose of perfecting their title, and foreclosing all Joshua Woodward’s rights in the estate now claimed by the plaintiffs, they had reasonable grounds for making him a party to the original bill, and to bring their bill of revivor against his legal representative.

If it appears at the time of the hearing of the cause, that the witness is an interested witness, the court will suppress the deposition. Maddox Chanc. 421, 24, and 414. The subsequent mutual releases executed, as the case finds, since the filing of this bill, cannot restore competency to the deposition, as the witness should have discharged his interest before he was sworn in the cause. The releases came too late. 2 Daniell’s Chanc. Pr. 1043, and 4. And it is the opinion of the court, that, so long as there was an interest reserved in Joshua Woodward in the lands in question, he cannot testify.

Aside from these questions as to the evidence rejected, only a portion of which we have considered, as there was other testimony on which the jury might have found for the defendant, the verdict must be set. aside, and there must be

A new trial.