Loomis v. Jackson ex dem. M'Naughton — 19 Johns. 449

Majority

p. 449

Jeduthan Loomis, plaintiff in Error, against James Jackson, ex dem Malcolm M‘Naughton, defendant in Error.

Headnote

w&ere tfie P”™'363 in a deed were described as lot No. 51, in the second division “bounded11™!* *vium». mg at a stake and stones,” &c. and so giving the monuments, courses and distances ; and the grantor at the time owned lot Pío, 50, in the same patent, and the monuments, courses ar»u distances in the corresponded*7 yy1* t*»»-. on the land; '.'eld, that the word?, might be raplusage?8 Sthe bdnglíb“>nt. !ut™hoséw^d¿" s. c!" ^

IN ERROR to the Supreme Court. For the facts in this case, and the opinion of the Court below, see the re-1 * 3 port of the same case in vol. 18. p. 81—87.

A. Van Vechlen, for the plaintiff in error,

contended, 1. That no estate in lot No. 50 passed by the mortgage, the prepiises being described as part of lot No. 51.

2. Though in the construction of a deed, when there is a contradiction in the description of the premises granted, the Court may reject part of the description, as false or mistaken, for the purpose of giving effect to the deed; yet the Court is bound, in the exercise of a sound discretion, not to reject certain, definite, and distinguishing particulars, in favour of uncertain, undefined, and fluctuating particulars.

, . i 3. Parol, or exclusive evidence cannot be received to contradict, vary, or add to an instrument in writing: especially, when its effect is to fix notice of a registered morígage, when a subsequent bona fide purchaser, to whom the registry, unexplained by such evidence, would not be notice.

He cited 4 Tyng's Mass. Rep. 196. 7 Johns. Rep. 223 .

E. Williams, contra,

insisted on the following points : 1. That the land passed by the mortgage, inasmuch as it was manifestly the same land, possessed by Loomis, the-plaintiff in error.

p. 450

2. That the boundaries contained in the mortgage were the same as in the deed, under which the plaintiff in error claimed title. Boundaries, by every rule of reason and law, are paramount to length of lines, numbers of the lots, and number of acres; as in the former, there can be no mistake, while the latter depend on survey and calculation which are liable to error, from the fallibility of the human mind: But boundaries or known monuments, especially marked trees, or other immoveable objects, depend only on ocular demonstration, and are very rarely mistaken.

3. That the registry of the mortgage containing those boundaries, (although the number of the lot was mistaken,) was sufficient notice to the purchaser; for no man could doubt that the land was the same, and would readily suppose the number of the Jot mistaken, but the land to be the same, from finding the more certain and definite land marks and established boundaries ; particularly when the purchaser perceived in the deed offered to him, the precise courses, distances, number of acres, the same grantor, and monuments designated in the same terms.

4. That if the number of the lot had been altogether omitted, the mortgage would have been good, because the premises might have been located by monuments, &c. The wrong number of the lot, therefore, could not vitiate the deed.

The facts in the case are shortly as follows: James Wells, on the 15 th day of August, 1820, executed a mortgage to Malcolm MlNaughton, of a parcel of land in the town of Cambridge, in Washington county, described as being in the second division of a patent granted to Isaac Sawyer and others in that town, and containing 51 acres of land. It was minutely described in the mortgage by metes and bounds, courses and distances. The description stated the line as commencing at a stake and stones, in the south line of the lot, 9 chains.and 52 links westerly from a stake and stones standing near a marked pine tree, and the. termination of every course and distance is denoted to be a stake and stones. Such a lot or parcel of land corresponding, in every respect, with the above description was foupd

p. 451

and surveyed, but it was part of lot No. 50, in the second divison of the said patent, whereas the mortgage to M‘Naughton stated the land to be part of lot No. 51. It does not appear that Wells, the mortgagor, ever owned any land in lot 51, but it does appear that he did own the above parcel of land in lot No 50, and that subsequent to the exeecution and registry of the mortgage, he conveyed it away to Jeduthan Loomis, and by the very same description, verbatim, except that the deed to Loomis expressed the true number of the lot.

The simple question, and it is one not involved in technical learning, or placed beyond the reach of plain and prac-. tical common sense, is, whether M‘Naughton must be deprived of his mortgage, because the lot so perfectly ascertained, and so minutely and accurately described, has been misnamed, and called lot 51, instead of lot 50. There is no evidence or pretence in the case, that Loomis, the subsequent purchaser, was misled, and did not know of the existence of this mortgage. He could not possibly have been misled, if he consulted the registry, (as we are to presume he did,) for he would have found there a mortgage from Wells to Naught on, for the same quantity of land which he purchased, and in the same division of the patent, and containing the same identical description by monuments, courses, and distances. It is impossible to suppose he was mistaken, or that he had not due notice of the mortgage. Wells, the mortgagor, was in possession of this land when he mortgaged to M‘Naughton, and when he afterwards sold to Loomis. He was not in possession of and he never owned any land in lot No. 51. So we are to presume, for no fact of that kind is attempted to be shown, and it ought to have been shown hy Loomis, if he intended to escape from the presumption which now presses irresistibly against him. Then Loomis, the purchaser, must have consulted the record, and must have known of this mortgage. He found the same definite and notorious boundaries, the same courses and distances, the same heaps of stones, the same marked pine tree, and the same quantity of acres; and I have no doubt in my own mind that Loomis purchased with actual knowledge of the mortgage, and with a diminution of

p. 452

price corresponding with the value of the inctimbranee. The justice of the case cannot be mistaken, for a moment," and the rules of law in the construction of deeds happily accords with the suggestions of good sense, and the dictates of morality.

If there be certain particular^ sufficiently ascertained, which designate the thing intended to be granted, the addition of a circumstance false or mistaken, will not frustrate the grant. Thus, says one of the old cases, (Blaque v. Gould, Cro. C. 447. 473.) if there be a devise of a house called the corner house in Andover, in the possession of B. and H., and it turns out that the corner house at Andover was in the possesssion of B. and JV., and not of B. and H., yet it was held to pass, for. the thing was sufficiently ascertained, and the addition of its being in the possession of H. was a mistake. The devise was certain without that addition, and was expounded according to the apparent intent. So, again, (Cro. C. 548.) there was a deed of all that glebe land and tithes lying in Andover, viz : 78 acres of land, lately in the occupation of B., and it happened that the same was never in the occupation of B., yet the learned judges of the K. B., in the time of King Charles I. held, that the land and tithes sufficiently passed, for they said, the addition of a falsity shall never hurt where there was any manner of certainty without it. And in our own time, we have the like rule of construction laid down by the Supreme Court of Massachusetts, in Worthington v. Hylyer. ( 4 Tyng, 196 .) If the description, says Chief Justice Parsons, be sufficient to ascertain the estate intended to be conveyed, although the estate will not agree to some of the particulars in the description, yet it shall pass . by the conveyance, that the intent of the parties may be effected. Thus, he says, if a man convey his house in D. which formerly belonged to C. the house shall pass if the grantor had but one house in D. because the estate intended to be conveyed is sufficiently ascertained. The case before the Supreme Court in Massachusetts is very much in point. The land was described in a mortgage as all his farm of land in W. on which he lived, containing one hundred acres, with his dwelling house and ham standing

p. 453

thereon; and adds, that the farm was lot No. 17, in the first division of lands, and it turned out,1 that the farm was not lot JSTo» 17, but a different parcel of land, and the Court wisely rejected that particular of the description as not essential. So, in the present case, the land is sufficiently described by the metes and hounds, the courses and distances, the monument®, the number of acres, the town, the patent, the ownership and possession ; and the number of the lot therefore, may safely be rejected.

April 1st.

I conclude, that the premises passed by the mortgage; and Loomis, the subsequent purchaser, was bound by the registry bf it, and took subject to thp mortgage. This is equally the law and the equity of the case ; and lam aceordingly of opinion, that the judgment of the Supreme Court ought to be affirmed.

This being the unanimous opinion of the Court, it was thereupon, Ordered, Adjudged, and Decreed, that the judgment of the Supreme Court be, in all things, affirmed, &c.

Judgment of affirmance.