Jackson ex dem. M'Naughton v. Loomis , 18 Johns. 81 ( 1820 )

Spencer, Ch. J.

delivered the opinion of the Court. The question is, whether the mis-description of the lot, in which the premises are situate, it being described as lot No. 51, when, in fact, it was lot No. 50, is fatal to the plaintiff’s mortgage ; or, in other words, whether the premises of which Wells was seised, and which he Undoubtedly intended to mortgage, passed to the lessor ? In Jackson v. Clark, (7 Johns. Rep. 223.) we had occasion to examine and decide upon the principles applicable to the descriptive parts of a deed. The opinion then expressed was this : “if there are certain particulars once sufficiently ascer? tained, which designate the thing intended to be, granted, the addition of a circumstance, false or mistaken, will not. frustrate the grant. But when 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, exbept such as will agree to every part of the description;’’ and cases wére referred to, illustrative, of the rule. The governing consideration in all casék upon. the construction of deeds, is, to give effect to the intention of the parties, if the words they employ will admit of it. In the case then under consideration, the premises Were described, as “ lot No. T. of the smaller, lots into;jvhich lot No. 3. of the subdivision'of lotNo. 10. in the 12th general allotment of the patent of Kayaderosseros is subdivided, beginning at a hemlock tree, marked No. 2 and 3, being the north west corner of lot No. 2. of the said subdivision, and standing on the easterly bound of lot No. 9. of the said allot-jnent,” giving other monuments, such as stakes and heaps of stones. In point of fact, the lands intended to be conveyed were in lot No. 1. of the subdivision of lot No. 3. in the division of great lot No. 10. in the 21st allotment of the, pa*, tent ; and it appeared that there was a lot No. 10. in the 12th allotment of the patent, but that it had never been subdivided. We held that the plaintiff was entitled to recover, •on the ground that the premises were sufficiently described, without reference to the general allotment, and that it was the addition of a false or mistaken circumstance, which did not affect the grant; and we laid great stress upon the facts, that the courses and distances of the lot sued for, precisely agreed with, those given by the deed, and that the marked hemlock tree, and the stakes and stones were found, as required by the courses and distances. The case of the executors of Worthington v. Hylyer, (4 Tyng’s Mass. Rep. 146.) was referred to, as containing just and sound doctrines on this subject. In that case, the description was erroneous in several important particulars. The description was, “ all-that my farm of land in IF. on which I now dwell, being lot No. T7. in the first division of lands, there, containing one hundred acres, with my dwelling house and barn thereon standing, hounding west on land of J. C. northerly, by a pond, easterly by lot No. 18, and southerly by lot No. 19, having a highway through it.’’ There was a lot, No. 17, bounded precisely as the description was; yet it was decided, that as the deed specified the grantor’s farm on which he then lived, with his dwelling house and barn thereon, although the dwelling house and barn were not on lot No. 17, that description was sufficient to ascertain the estate intended to be conveyed, it appearing that two other adjoining tracts, in all amounting to 300 acres, Were the property, and in the occupation of the grantor, when he gave the mortgage^ The Court rejected the description of the number of the lot, because the description; was sufficiently certain without it; and because, if it was considered as part of the description, the deed would be void; and that the lot:was, mentioned as descriptive of the farm, and not the farm as descriptive of the lot. In Doe, ex dem. Connolly, v. Vernon & Vyse, (5 East, 51.) all the cases are collected, and well commented on. In the. present case, there is sufficient certainty by which to ascertain the land granted, independently of the number of the lot. It is to be a piece or parcel of land, lying in the town of Cambridge, and county of Washington, beginning at a stake and stones, nine chains, fifty-two links and a half westerly from a stake and stones standing near a marked pine tree, and thence running, &c. Now, the stake and stones, the marked pine tree, and the courses and distances, and stations given, are shown, in point of fact, to correspond exactly with the description in the deed. We have a right to presume, either that these monuments were erected by the parties prior to the conveyance, and with a vieyv to it, or that they went on to the land, and ascertained them to be there ; and that the premises were ihen surveyed out under the inspection of the parties. These monuments are part of the description, and a much more important part,than the expressions in the deed, “ being part of lot No. 61, in the second division of a patent granted to Isaac Sawyer and others.” Indeed, I consider the number of the lot no more important than the fact asserted, that the patent was granted to Isaac Sawyer and .others; and suppose that this part of the description was untrue, that it had been granted to John Sawyer, or to any other person, surely that mistake would not avoid the grant. It seems to me that no one can doubt the real intention of the parties, to’ have the premises in question included in the mortgage; and if we reject the number of the lot, the premises are' fully described, by the facts, that James Wells was seised of these lands when he gave the mortgage; that the monuments referred to in the deed are found on this land; that the courses and distances from one monument to another, precisely agree with those called for by the deed; and that unless the deed conveys this land, it is inoperative and void. On the latter consideration, Lord Hardwicke laid great stress, in Gascoign and others v. Barker, (3 Atk. Rep. 9.) There is another principle applicable to the case. Here is a flat contradiction in the description, and then we ought to take' that which is most stable and certain. This lot may have obtained its number from reputation merely; and in point of certainty, the number holds no comparison with the monuments. If courses and distances are given to reach an object, and if they will not reach it, you must go to the object, as the most certain. My opinion, therefore, is, that the premises in question passed by the mortgage to the lessor of the plaintiff; and, in the language of Chief Justice Parsons, the lot was mentioned as descriptive of the land to be conveyed, and not the land as descriptive of the lot. The reference to the lot is mere description. It was a mistake; but there are other and more certain objects of description amply sufficient to ascertain the land granted.

If the premises passed by the mortgage, then the title of the mortgagee cannot yield to that of a subsequent purchaser. The rules of construction upon this deed must be the same, whether the mortgagor afterwards conveyed it or not. It is impossible to believe, that had the defendant resorted to the registry of mortgages, and there found a mortgage from James Wells to the lessor of the plaintiff, and had read the whole description, but that he must have known that it was for the very land he was purchasing; for who ever heard of a perfect similarity of description, as to monuments, courses, distances and quantity, without being struck with the conviction, that if the land were situated in the same town, were pretended to be owned by the same man, and lay in the same patent, that they were not two tracts, but one and the same ? I am of opinion, the plaintiff must have judgment, and that is the opinion of the Court.

Judgment for the plaintiff.