Grant v. Black

Appleton, C. J.

On the 1st day of December, 1847, Alexander Baring and others conveyed to the plaintiffs’ father the following described premises,- — "a certain lot or parcel of land lying and being in the township number twenty-one, middle division, in the county aforesaid, (Hancock,) and State of Maine, numbered twenty-one, middle division, and butted and bounded as follows ; viz., beginning at the northeast corner bounds of township No. 15, M. D., and running by said township westerly to the southeast corner bounds of township No. twenty, M. D., or Maria-ville, thence northerly by said township No. twenty, or Mariaville, to the southwest corner bounds of township No. 27, M. D., or Aurora, thence easterly by said township No. 27, to the southwest corner bounds of township No. 28, M. D., thence southwesterly by a line to he run between townships Numbers 21 and 22, M. D., to the place of beginning and containing twenty-three thousand and forty acres more or less, — the part of said township intended to be conveyed by this deed is the north half thereof, reserving therefrom two lots of three hundred and twenty acres each for public uses in said town, three lottery lots containing eight hundred acres, and six lots of one hundred and sixty acres each, sold to settlers, having and containing nine thousand, one hundred and twenty acres more or less, according to a survey and plan of said town by Peters and Dodge, surveyors, &c. The line in controversy is that between No. 21 and No. 22.

The meaning and intention of the parties is to be ascertained from the grantors’ deed. As the words are of their selection, the construction most favorable to the grantee is to be adopted.

The four corners of the township in question are undisputed. There is no controversy as to three of its sides. By the terms of the deed, the line from the S. ~W. corner of No. 28, M. D., (about which there is no doubt,) to the N. E. corner of No. 15, M. D. the point of beginning, is a line to be run. There might have been a line between No. 21, M. D. and No. 22, M. D., but if there was one, the grantors did not adopt it. They repudiated it. It was a line to be run. The grantee is so informed in and by his deed. There may be ever so many lines between these townships, but none are to affect him. The point of departure is well ascertained. The point to be reached is equally well fixed. The line to be run must be the shortest distance between these two designated and established corners. The grantors owned the two townships, between which the divisional line was to be run. They had an unquestioned right to bound their grants by such limits as they might choose.

After the corners of the townships in the Bingham purchase had been established and the plan made, a line was run by John Peters in 1792, purporting to be the line between No. 21, M. D., and No. 22, M. D. This lino the defendants claim to be the line between these townships. But this line was not between the N. E. corner oí No. 15, M. D., and the S. W. corner of No. 28, M. D. It is fairly inferrible, from the language of the deed under which the plaintiffs claim, that the grantors therein were aware of the existence of the Peters line. They might, had they deemed it expedient, have affirmed the line run by Peters as the true one. Instead of adopting it, they distinctly and unequivocally ignore any existing line, by requiring one to be run from the last corner in the deed to the place of beginning, by which line to be run the grantee is specially bounded.

The plaintiffs’ deed does not refer to any existing line between No. 21, M. D., and No. 22, M. D., but to one to be run. A line run and a line to be run are expressions materially different. The monuments between which the line is to be run are well defined and specially referred to. The line for which the defendant contends is not between these monuments, nor is it referred to. It is a line other than that described in the deed. The grantors of the plaintiff have defined the corners between which the line is to be run, and we have no authority to change or alter that line or to adopt a different one.

The adjacent township is owned by the defendant by a deed from the same grantors from whom the plaintiffs derive their title. It is bounded by a line identical with one "¿o be run” from the S. W. corner of No. 28, M. D., to the N. E. corner of No. 15, M. D. The plan of the survey and location of the Penobscot Bingham purchase makes the line between No. 21 and No. 22 one and the same. There is no gore between them. The defendant’s deed from the same grantors excludes the land in controversy from his grant.

The deed under which the plaintiffs claim refers to monuments. Those monuments are found on the face of the earth. They are not disputed. No reference is found in any deed to the Peters line as an existing line, but the reverse. The deed to Grant calls for a line to be run. It gives monuments between which the line is to be run. The line must be run between them. • The line between No. 21 and No. 22, as described in the deed to the defendant, is coincident with the line to be run. The monuments must govern.

The ruling of the Court repudiated the monuments to which the deed specially refers, and adopts a line which the deed does not recognize. The line in dispute, according to the ruling to which exception is taken, is obtained by running back on the preceding line fifty rods to a monument not referred to in the deed, and thence on the line between No. 21, M. D., and No. 22, M. D., to the place of beginning. The corner in the deed and the line to be run, according to the deed, to the place of beginning, and the course of the line are rejected; and preference is given to a corner and a course and a line, of which no mention is made in the deed.

This is'the reverse of the manifest intention of the parties and is erroneous.

Nor does the last clause " according to a survey and plan of 'said town by Peters and Dodge” control or modify the construction given to the preceding language of the deed.

"The first deed and the last will shall operate” is an ancient maxim. 4 Cruise, 244. In accordance with this principle, if there be a contradiction between the call of the deed requiring a new line to be run, and the clause referring to the survey by Peters and • Dodge, the former must prevail.

So the various parts of a deed should be so construed as to reconcile all seeming contradictions and to give effect, as far as may be, to each and every clause. Accordingly the line is to be run as first required, and, being run, the survey and plan are to govern as to the other lines.

This gives effect to all the calls, and is in conformity with the intent apparent in the whole deed, and that intent is to govern. Exceptions sustained.

Dickerson, Barrows and Tapley, JJ., concurred.