Jackson ex dem. Swain v. Ransom — 18 Johns. 107

Majority

p. 107

Jackson, ex dem. Swain and others, against R. & J. Ransom.

Headnote

c,eedWhdeers°ci^ bingiand con-veved* is lile-gi&ie, or so as certain what ¡3 deediTsó for

where. described by*a ‘a®d ^^^fendant examination of deed, the jury were satisfied, it^was^heid certain?tly

Where the premises in a deed, being* a lot of land, are described by a number 01 the lot, and also, as having been granted by letters patent to U., &c. and by him conveyed to J. 8. the grantor, as by reference to that deed will ™°ar® tblbj aP^ last «feed 84. and in the one referred to m, it wa3 omitting the faTdeedl tile with tahu^topIS [[¿jned In^hé depd referred to as No. 174.

EJECTMENT for part of small lot No. 174, in a tract of land in Clinton county, tried before the Chief Justice, on J 7 7 the 15tn of June, 1819. The plaintiff gave in evidence a patent to TJdney Hay, a Lieutenant Colonel of the Canada Refugees, for 500 acres of land, dated the 27th of February, 1790, described as follows: “All those two certain tracts of land, (being part of a large tract situate in the county of Clinton, set apart for the Canadian and A'ota Scotia refugees,) known and distinguished in a map and return of, the said large tract, filed by the surveyor general in the secretary’s office, by lots No. 56, and No. 174, said lot No. 56 containing 420 acres, and lot No, 174 con-laining eighty acres of land ; a deed from Udney Hay to John Hoope, dated the 30th of September, 1794, for “ all that certain parcel or tract of land, granted to him as a Canadian refugee, containing 420 acres, marked and distinguished by lot No. 56; as, also, that other certain parcel or tract of land granted to him in like manner, containing eighty acres, and distinguished by the title of lot No. 174, (as the plaintiff’s counsel read the deed, but which figures the defendant’s counsel contended were 84,) which said two lots are one moiety of all the land he is entitled to as a Canadian refugee, &c. Also, a deed from John Hoope and Mary his wife, to John Byrne, for “ all those certain tracts, pieces or parcels of land, situate, lying, and being in the county of --, formerly granted to Udney Hay, a Canadian refugee, and late an officer in the service of the United States, , , ,. . . , , , . ,T . . known and distinguished by lot No. 56, containing 420 acres, and by lot No. 84, containing 80 acres, which said two lots of land are one moiety of all the lands the said Udney was entitled to as a Canadian refugee,” &c. “ which said two lots were conveyed by the said Udney Hay, to the said John Hoope, by an indenture bearing date the 30th of September, 1794.” -* ’

p. 108

The defendant’s counsel objected to the reading of the last menti°Re<l deed in evidence, on the ground that the small lot was described as No. 84, instead of 174; but the Chief Justice permitted the deed to be read, reserving the question. The plaintiff then proved, that John Byrne died about the year 1802, leaving two children, Catharine and John; that John died without issue, and Catharine married James Calder, one of the lessors; that the defendant was id possession of lot 174 when the declaration was served. The defendants’ counsel moved for a nonsuit; but the Judge reserved the question of law, and the defendants gave in evidence a deed from E. J. Ransom to the defendants, dated the 30th of December, 1810, for lot No. 174, the premises in question, with full covenants of seisin and warranty, &c. The defendants also proved, that there was a lot No. 84, containing 80 acres, in the refugee tract.

The Judge charged the jury, that if they believed that the deed from Hay to Hoope, wms for lot 174, and not for lot 84, they ought to find a verdict for the plaintiff, subject to the opinion of the Court on the points reserved. The jury-found a verdict for the plaintiff, subject to the opinion of the Court, on the points reserved.

Z, R. Shepherd, for the plaintiff.

Walworth, for the defendant.

delivered the opinion of the Court. This case presents two questions : 1st. Whether the deed from Udney Hay to John Hoope; conveyed lot 174, being parcel and part of lands granted to said Hay, by letters patent; and, 2d. Whether the deed from H oope and wife to John Byrne, also conveyed to the latter" the same lot ? It is contended for the defendant, that the deed from Hay to Hoope, either conveyed lot No. 84, (and there is such a number in the tract,) or that’the deed is so illegible as to render it altogether uncertain what lot was conveyed, or intended to be conveyed. The number of the lot is in figures; it was left to the jury todetermine whethert’ney were 84,or 174, and they pronounced them to be the latter. . I agree to the

p. 109

position, that if the writing be so illegible as not to be read, or to leave it in a state of uncertainty what is conveyed, so far the deed will be inoperative. I, however, think this not to be such a deed; and I am satisfied, by an examination of the whole deed, that the figures in question are If4. The figure 8 occurs in other parts of the deed, and it is wholly dissimilar to what is said to be 8 in this number, and I have no doubt the figures are 174. It appears that Hay was the patentee of that lot, but not of 84.

2d. The deed from Hoope and wife to Byrne, conveys to the latter, lot No. 84, and the premises in question have always been known as No. 174. The deed grants two lots, Nos. 56 and 84, and it describes them “ as all those certain tracts, pieces, or parcels, or lots of land, situate, lying, and being in the county of-, formerly granted to Udney Hay, a Canadian refugee, and late an officer in the service of the United States, known and distinguished by lot No. 56, containing, &c. and by lot No; 84, containing 80 acres, and which said two lots of land are one moiety of all the lands the said Udney Hay was entitled to as a Canadian refugee, and by virtue of an act of the legislature of the state of New-York, entitled, Sic. passed the 11th of May, 1784, which said two lots were conveyed by Udney Hay to the said John Hoope, by an indenture bearing date the 30th day of September, 1794, as, reference being thereunto had, will more fully appear. It appeared there was a lot No. 84 in that refugee tract, containing 80 acres; but it did not appear, that that lot had been granted to Hay, or that he had any other patent than the one for the two lots 56 and 174, both of which contained 500 acres; though he appears, by the act, to have been entitled to 1000 acres.

Had the numbers of the lots been wholly omitted, the description in the deed would have passed these lots, 56 and 174, for they are described as lots granted to Hay, as a Canadian refugee, by virtue of an act of fhe legislature particularly stated ; and they are described as lots conveyed by Hay to Hoope, by a deed of a particular date, and reference is had to the deed, not only to prove the fact that a conveyance had been made, but of the lots intended to

p. 110

be granted; and the reference was truly made, as appeaia by the deed given in evidence.

The Bishop of Ely's case, 4 Eliz. (Shepherd's. Touchstone, 88.) contains the position, that if there be two clauses in a deed repugnant to each other, the first shall be received, and the last rejected, except there be some special reason to the contrary. This principle does not apply, for this description is all in one clause, and there are special reasons to the contrary; the reference to the grant to Hay, and' the deed from him to Hoope ; the insertion of 84 was clearly a mistake, and there is other and greater certainty in the description, than the reference to the number. In the case of Jackson, ex dem. M'Naughton, v. Loomis,^[1] I have had occasion to look into the cases, and I am of opinion, that the plaintiff is entitled to judgment.

Judgment for the plaintiff.

* Ante, p.8i.