Stevens v. Johnson , 1875 N.H. LEXIS 98 ( 1875 )

Thomas Beech, collector of Stratford for the year 1818, conveyed the whole of the lot to Guy C. Cargill, by deed dated March 6, 1820. This deed is definite and certain, and, according to the case of Minot v. Brooks, 16 N.H. 374, gave Cargill color of title to the whole lot. Cargill, by deed dated August 29, 1842, conveyed one half part of the same lot to Trull; and Trull, November 25, 1844, conveyed to Barnard one half part of the same lot. By virtue of these conveyances, Barnard obtained color of title to one undivided half of the lot. September 1, 1851, Barnard obtained from Marshall a deed conveying to him one hundred acres of the same lot. For the purposes of this case, it is only material, as will be seen hereafter, to ascertain what this deed conveyed to Barnard, without reference to its validity. The question is not whether Barnard got a good title, but what did he claim to hold by virtue of that deed?

In Bacon's Abr., title "Grant," H. 3, it is said, — "If A, seised of a great waste, grants the moiety of a yard-land lying in the waste, without ascertaining what part, or the special name of the land, or how bounded, this may be reduced to a certainty by the election of the grantee; but it is otherwise in the case of the king's grant, for there can be no election in that case, and therefore the grant is void for incertainty. So, if a man grant twenty acres parcel of his manor, without any other description of them, yet the grant is not void, for an acre is a thing certain, and the situation may be reduced to a certainty by the election of the grantee."

In Haven v. Cram, 1 N.H. 93, a constable's deed of "a certain tract of land, part of lot No. 300, containing 350 acres," was held to be void for uncertainty.

The court say, — "The deed of the constable is clearly void for uncertainty, unless it can be construed to be a grant of two hundred and fifty acres, to be located by the grantee at his election. In a common conveyance from one individual to another, the court would be warranted in putting such a construction upon a deed — Bacon's Abr., "Grant," H. 3 — because every deed is to be construed most favorably to the grantee; and therefore, to give effect to the conveyance, the deed is construed to give an election in such a case to the grantee to locate the land."

The court say, in substance, that the deed of an officer must be construed, like the deed of the king, strictly, and make this distinction between the deed of an officer and of a private person.

In Canning v. Pinkham, 1 N.H. 353, a farm containing one hundred and four acres was conveyed, — "Twenty-four acres to R., to be in common and undivided, six acres to A., to be in common, and undivided, and the remainder of the farm with the buildings to J" — held, that the deed was not void for uncertainty, but that a several estate in the buildings was conveyed to J. with 74/104 of the land, 6/104, to A., and 24/104 to R.

A conveyance of "one fourth" of a tract of land, without locating the part conveyed, vests in the grantee a title to an undivided fourth part of the whole tract as tenant in common with the grantor; and the grantee can only obtain partition of the tract by legal process, or by agreement with his co-tenant. McCaul v. Kilpatrick, 46 Mo. 434. To nearly the same effect is Small v. Jenkins, 82 Mass. (16 Gray) 155. Applying the principle in the cases cited, it appears to me that Trull's deed to Barnard conveyed one undivided half of the lot; and that Marshall's deed to Barnard conveyed also one undivided half of the lot, with the right to elect what he would take.

It should be remembered that Marshall's deed is the deed of a private person and not of a collector, and what we are seeking now to ascertain is what the deed of Marshall purported to convey. Admitting that the collector's deed was void for uncertainty, still Marshall's deed was not, because the same terms from him, a private person, gave the right to elect.

It appears that in 1851, Barnard, after obtaining his deed from Marshall, entered upon the land, looked up the boundaries to some extent, and always afterward claimed to be the owner of one undivided half of the lot.

This is evidence that Barnard elected to cover, with his deed from Marshall, the undivided half conveyed by his deed from Trull. This fixes and identifies the land conveyed by Marshall as the same land conveyed by Trull, and there could be no better was of making the election than by taking possession, and no better way of proving the election than by showing such possession.

Barnard then conveyed to Kimball all the land conveyed by Marshall's deed to him, however described, i. e., whether described as one hundred acres of the lot, as in Marshall's deed, or one half part of the lot, as in Trull's deed.

I think, therefore, that Kimball obtained from Barnard color of title to one undivided half of the lot, and the plaintiff obtained the same from Kimball, and this, together with Barnard's acts of possession, gave the plaintiff a sufficient title to enable him to maintain his action against the defendant, who shows no title.

I do not see that a deed to the defendant from a grantor, confessedly having no title, alters the matter.

FOSTER, C. J., C. C. I concur in the conclusion reached by my brethren in this case, and I agree with my brother CUSHING in his views concerning Barnard's right of election, and the manner of proving such election. Trull's deed to Barnard conveyed "one half part" of the lot, and Marshall's subsequent deed to Barnard conveyed "one hundred acres of the same lot." Marshall's deed being that of a private person, Barnard had a right of location under it, and his entry and acts of ownership and the terms of his conveyance to Kimball, all taken together, indicate an election not only to consider Marshall's deed as conveying one undivided half of the premises, but as covering the same, that is, as conveying no more or other than was included the previous conveyance of Trull.

Exceptions overruled, and judgment on the verdict.