Clough v. Bowman , 15 N.H. 504 ( 1844 )

Parker, C. J.

In order to ascertain the true construction of the deed from Hiram and Jaffrey Clough to the defendant, it may be expedient to trace the title under which the parties both claim.

Daniel Stickney may be regarded as having been the source of title to the whole of lot 34. David Stickney was the owner of that lot. Goodall levied, and conveyed the north part to Daniel Stickney. He afterwards conveyed the south part also to Daniel in order that he might convey to Dyke, so that both parties claim title under Daniel Stickney. The previous levy and deeds are material only as they furnish materials by way of reference, to ascertain the divisional line between the north and the south part of the lot. Daniel Stickney, then, in 1830, conveyed the south half of the lot to Dyke, bounding him on the log fence south of his house. At this time there was a log fence there in the line of the rail fence described in the levy. There was then no other fence there. The one to which the plaintiff claims was. erected afterwards. Dyke took the south part, bounding on the only fence then existing, which is the line to which the defendant, holding under him, claims. That fence was burnt, sometime after the levy made in 1827. The precise time does not appear from the case, but the remains of it were visible at the time of the trial.

After the conveyance to Dyke, Daniel Stickney and Dyke erected another fence, which appears to have been for temporary purposes. There is evidence to show that it was understood not to be on the line, and was not to be regarded as the boundary. The erection of this fence, then, did not alter the title or boundary line between the parties who erected it. Parties whose lands join may agree upon a dividing line between them by parol and establish monuments, and this will bind them until they make a subsequent agreement. 9 N. H. Rep. 473, Gray vs. Berry ; 6 N. H. Rep. 107, Sawyer vs. Fellows; 12 N. H. Rep. 27, Prescott vs. Hawkins. But possession up to alinewdiieh it appears was established for temporary purposes only, is not evidence of title. 7 N. H. Rep. 457, Enfield vs. Day.

Dyke in 1881 conveyed to Robert Clough. The description in this deed, according to the case, was similar to that in the deed of Stickney; that is, by part of the description it bounded Clough on the log fence south of Stickney’s house. There was at that time a log fence there, erected for temporary purposes, and the remains of another. This was a circumstance to lead to enquiry on the part of the purchaser, and might raise a question for a jury. Where there are two or more monuments, either of which may be that designated in a deed, parol evidence is admissible to show' which is the one intended. 2 N. H. Rep. 373, Cleaveland vs. Carlton; 13 Pick. 261, Waterman vs. Johnson; 5 Greenl. 496, Linscott vs. Fernald; 13 Maine 114, Wing vs. Burgis. If the description had stopped here, the fact that Dyke owned to the remains of the old log fence, and the improbability that he could have intended to convey to the other, only reserving a small narrow strip of land lying between the two, would be a circumstance to show what log fence was actually intended by that deed. But this is only part of the description. It proceeds to give the farther description, being all that Daniel Stickney deeded to Goodall, April 25,1827, and all that was set off to Goodall on his execution against David Stickney. Here are two other particulars by wliich to ascertain the land conveyed. Both of them go to show that the log fence referred to was the old log fence, and to fix that as the true boundary. It appears, then, that Robert Clough owned the south part of the lot to the line to which the defendant claims.

In this state of the case, in 1832, Daniel Stickney conveyed the north part to Moulton, under whom the plaintiff derives his title. The particular description by which that conveyance was made bounded Moulton on the south by land owned by Robert Clough. Daniel Stickney had not then any title south of the line of the old log fence, which stood in the line of the rail fence mentioned in the levy, and he could not, therefore, convey any thing beyond that to Moulton, and did not attempt to do so.

If the log fence erected by Dyke and Stickney had been agreed upon as the dividing line between them, Stickney, by his deed to Moulton, might have conveyed to the line thus established; but the evidence showing that this was not only not so, but that it was expressly understood to be a temporary fence not on the line, no title could pass to him beyond the old log fence, Robert Clough owning to that.

There is nothing in the case to show any change of title in the conveyances of the north part, or any extension of boundary ; and it would seem, therefore, that the plaintiff could not have a title to the strip of land between the fences, which is the land in dispute, even if the defendant has it not.

But the defendant does not rely merely upon the want of title in the plaintiff to the strip of land in controversy. He claims title in himself, and this position is sustained by the rulings and instructions in the case. It becomes necessary, therefore, to examine the subsequent deeds under which the defendant derives and holds his title.

Robert Clough, in 1835, conveyed the south part of the lot to Hiram and Jaffrey Clough, describing the land substantially in the same manner as it was described in the deed to him. There seems then to be no good reason why the same land should not pass.

If there had been but one log fence there, (and that the temporary fence erected by Stickney and Dyke,) the particular description that the land intended to be conveyed was all the land conveyed by Daniel Stickney to Dyke and all embraced in the levy of Goodall, would seem to have controlled that particular of the description. 5 N. H. Rep. 58, Tenney vs. Beard; 5 N. H. Rep. 536, Barnard vs. Martin; 7 N. H. Rep. 241, Woodman vs. Bane. But when, in addition to this, we find that there were the remains of another log fence still visible, that the log fence had been the boundary there in the chain of title from a period before the new fence was erected, there seems to bo no rational doubt of the true construction. One particular is ambiguous; that is, which log fence was intended. There are two other particulars which make it certain, viz : the levy, and the deed from Daniel Stickney to Dyke.

This settles this part of the case. The deed to the defendant is quite as clear in its reference to the levy; and it refers also to Robert Clough’s deed, which refers back to the deed of Stickney to Dyke. If it was still a matter of doubt what log fence was intended, the settled principle is, that when other means of ascertaining the true construction of a deed fail and a doubt still remains, that construction must prevail which is most favorable to the grantee. 5 N. H. Rep. 58, Tenny vs. Beard; 10 N. H. Rep. 305, 311, Cocheco Man. Co. vs. Whittier and cases cited; 5 Met. 15, Melvin vs. Prop’rs of Locks and Canals, &c.

The argument that the description of the premises in the deed to Jaffrey and Hiram Clough is complete in the first part of it, and that what follows is repugnant and must be rejected, cannot bo sustained. The whole language of a deed is to be construed together, if it may be, in order to ascertain the true construction. And thus construed the whole description here is consistent.

If there were, in fact, two log fences existing at the time of the deed from Stickney to Dyke, as suggested by the counsel, the case would only be less strong. The result would seem to be the same. There would, then, be the other matters to show that the log fence claimed to by the defendant was the true one; and the construction must be most favorable to the grantee.

The objection to the admission of the copy of the record of the deed from Stickney to Groodall cannot prevail. That deed is not, strictly speaking, part of the chain of title; although, by the reference to it in the deed from Stickney to Dyke and in the subsequent deed, it became a part of the description of the premises. Of itself, however, it passes nothing to the defendant. But the reference to the deed and the record of it, makes either the deed or the record competent evidence, in connection with those deeds, to ascertain the premises conveyed in them; the record being referred to, it possesses as much verity for this purpose as the original. 20 Pick. 121, 123, 124, Foss vs. Crisp.

There are two objections to that part of the testimony of Robert Clough which was ruled out. In the first place, the language is too uncertain to show what he did which formed the subject matter of that part of his testimony: “ When I sold to the Cloughs, I pointed out to them to hold as high as that log fence, and no higher.” He may have shown them that as the boundary, but he does not say that he did. How he pointed out to them to hold, does not appear. He may have made a declaration that they would hold to the log fence he speaks of, which wouldbe inadmissible. If the language of the deposition is so uncertain that the meaning of the testimony cannot be reasonably determined, it should not be sent to the jury that they may guess at what the witness intended. But, if this clause were construed tornean that he pointed out that log fence to them as the boundary of the land, although it would be inadmissible in some cases, it could not be admitted to control the description in the deed, which, we have seen, shows the true boundary to be the other log fence. Such a pointing out of a particular object as the boundary cannot constitute a practical location of the tract conveyed, contracting the operation of the deed ; especially when it sufficiently appears, as in this case, that the grantor’s title extended farther, and that he intended to convey what had been conveyed to him; and the language of his deed is broad enough to cover what he thus owned. His deed describes the land substantially as it had been described in the former deeds. If he was mistaken as to his boundary, and pointed out a wrong one, that could not control and restrict the operation of his deed. The testimony does not show any assent on the part of the grantees, or any thing that could be construed into an agreement to fix the boundary in that place, and thus to bring the case within the principle of Waterman vs. Johnson, 13 Pick. 261.

There are two answers also to the exception founded upon the rejection of the deposition of Daniel Stickncy. The notico was not such as was required by the statute, which requires that the name of the justice before whom the deposition is to be taken shall be stated in the notice to the adverse party. The knowledge which the party thus acquires may determine the question whether he will attend or not. It is not sufficient, therefore, to give him notice that the deposition will be taken before one of two individuals. If the names of two magistrates might be inserted in this way, there is no limit, and the names of twenty might be stated. The ruling, therefore, was correct.

But, if the exception to the notice had been insufficient, and the rejection of the deposition erroneous, the plaintiff afterwards produced the witness, and he was examined. Testimony on the stand is sometimes regarded as less exceptionable than a deposition. Where the deposition of a witness has been taken to be used at the trial, but, at the time of the trial, the witness is in court and is called to the stand, the uniform practice is to exclude the deposition.

As the plaintiff had the benefit of the testimony of the witness, his exception comes to this, that, by the rejection of the deposition, he was put to the trouble and expense of procuring the attendance of the witness. But this would not entitle him to a new trial, oven if it were in consequence of the erroneous ruling of the court. If a party takes an exception to a deficiency of evidence on the part of his adversary, which is, in fact, well founded but is erroneously overruled, and he afterwards supplies that deficiency by testimony produced by himself, he thereby waives or overrules his exception.

Judgment on the verdict.