Dygert v. Pletts — 25 Wend. 402

Majority

p. 307

Dygert vs. Pletts.

Headnote

A sheriff’s deed conveying all the right and title of a defendant in an execution to a lot of land described as lying on the south side of a particular creek, in a given town and county, is no void for uncertainty in the description of the premises, although but a single line be given in the deed as a boundary, where the fact is shown that the defendant in the execution claimed to be the owner of all the lands situate between such line and creek,

This was an action of ejectment, tried at the Montgomery circuit in November, 1839, before the Hon. John Willard, one of the circuit judges.

The plaintiff, John S. Dygert, shewed title to the premises in question under the last will and testament of his father, who died in 1831. The defendant produced in evidence a sheriff’s deed, bearing date in 1839, executed in pursuance of a sale under a judgment and execution against the plaintiff, conveyed to him certain premises, which he alleged covered the premises in question. The premises were described in '’the [ *403 ] deed as follows: “ All the right, title and interest of the said John S. Dygert of, in, and to all that certain lot of land, situate, lying and being on the south side of the Atsquago creeh, in the town of Canajoharie, in said county, bounded as follows : Beginning at said creek on the line between the lands of Sefrenus S. Dygert, deceased, and. the lands of Jacob Young, and running thence easterly along the foot of the hill, as the same hill winds and turns until said line shall strike a knoll or sharp pitch, where the old road used formerly to go, in going to the mills: at this point raising said knoll or pitch, and continuing on the top of the same as it winds and

p. 308

turns to the line of the lands of John Walradt, deceased.” From a map exhibited on the trial, it appeared that running aline according to the objects given, a single line would be described crossing the north end of two lots formerly owned by the father of the plaintiff. The property devised to the plaintiff, in the will of his father, produced by the plaintiff on the trial, substantially described the same line ; but annexed to the description was the following clause: “ It is my intention that my said son John S. shall have all the lands I now own between the line above mentioned and the said creek, with the mills, buildings, machines, erections and appurtenances thereunto belonging.” ' The counsel for the plaintiff insisted that the deed produced by the defendant was void for uncertainty ; it merely describing a line, without containing any indication as to the lands intended to be granted, as whether they were situate on one or the other side of the line described. The defendant thereupon proved, that thé premises claimed by the plaintiff to be recovered in this action, were in fact situate between the line described in the deed and the Msquago creek; but the circuit judge being of opinion that the deed was void for the want of a sufficient description of the premises intended to be conveyed, instructed the jury to find a verdict for the plaintiff; which they did accordingly. The defendant now asks for a new trial.

H. Adams, for the defendant.

D. Cady, for the plaintiff.

*By the Court,

I am of opinion the learned judge erred in his construction of the deed. It is true, looking simply at the lines and bounds given in the deed, there might be some difficulty in determining on which side of the line running easterly the premises lie, whether north or south; but taking them in connection with the preceding part of the description, to wit: “ all the right and title of the said =7. S. Bygert in and to a certain lot of land situate, lying and being on the south side of the Atsquago creek,” the designation seems to me sufficiently certain. It is conceded the premises, in fact, lie adjoining the creek south within the boundaries given; and for aught that appears, the plaintiff owned but one parcel in any way connected with these localities. No ambiguity or confusion existed by proof of any other parcel to which the description might relate. The plaintiff owned but one lot; and in respect to it, every line and locality mentioned in the deed went to designate it. Witnesses familiar with the objects described could have no difficulty in the location on reading the whole description ; indeed, Failing, the only witness called readily recognized the premises from reading the deed.

p. 309

Certainty, to a common intent, is all that is required ; and if there be a certain number of particulars given, sufficient to designate the thing intended to be granted, the grant will be effectual, though there may be others, false and mistaken, 6 Cowen, 281. It should also be as favorably construed for the grantee as is consistent with the rules of law, ut res magis valeat, quam pereat. Now, here we have in the description : 1. A lot belonging to J. S. Dygert lying south of the Atsquago creek. 2. Boundaries beginning at a known point on that creek. 3. A line or lines running from thence by natural and intelligible bounds to an adjoining farm situate east, with the evidence that Dygert’s lot lies between these lines and the creek. Looking at the map annexed to the case, in connection with the description in the deed, I think, there can be no reasonable doubt as to the sufficiency of the description, within well settled rules of construction.

New trial granted.