Bagley v. Morrill

46 Vt. 94

• Court: Supreme Court of Vermont
• Decided: August 15, 1873
• Status: Published

Opinion

The opinion of the court was delivered by

Peck, J.

The only question in the case is as to a portion of the east line of the plaintiff’s land, conveyed to him by Ephraim Paddock, by deed dated May 31, 1859. The case states that no question was made but that the title to the land described in that deed, was conveyed by it to the plaintiff.. The point made by the defendants’ counsel is, that the court erred in charging the jury to the effect that the plaintiff would hold so far as the courses and distances set forth in his deed from Paddock, would give him. In determining the correctness of this ruling, it 'must be viewed in reference only to the portion of the line in dispute. There does not appear to have been any dispute about the starting point mentioned in the deed, nor as to the first four lines therein described. The third line from the starting point, is described as running “ on said line ” — referring to the line between said Paddock and Jesse Cheney, before mentioned — “south 58 degrees east, about eighteen rods, to the road.” The next course is described as running “ thence north seventeen degrees east, eight rods and seventeen links, on the west side of said road.” Thus far there appears to have been no dispute. The controversy was as to the line between this point — the commencement of the fifth course — and the termination of the ninth course, which course is described as running north, forty-six and a half degrees east, seven rods and seventeen links, to the corner near the house formerly owned by M. Gastello. The defendant claimed that there was a mistake in the fifth course in the deed ; that it should be north, twenty-nine degrees west, instead of north, twenty-nine degrees east, as stated in the deed. It sometimes becomes necessary, in ease of two descriptions in a deed inconsistent with each other, to reject one as the false description, and adopt the other as the true one, as being more in harmony with the apparent intention, gathered from the whole deed. The ground on which this assumption of such mistake in the deed is mainly based, is, that by thus altering the fifth course, and.then running the four succeeding lines according to the courses indicated in the deed, the ninth course would strike the shed at the Castello house; while running all these lines by the courses named in the deed, the ninth course terminates two or three rods to the north-east of the Castello house. It cannot be said that this termination of this line is inconsistent with the courses and distances called for in the deed. The deed describing this line as running north, forty-six and a half degrees east, seven rods and seventeen links, to the corner near the house formerly owned by M. Gastello, does not call for a line terminating at the Castello house, but near it. It does not state on which side, or in what direction from this house the line terminates. It cannot be affirmed that two or three rods north-east of the Castello house, is not near it. It does not appear that the point where the line run, on the defendant’s theory, strikes the shed, is any nearer the Castello house than the point is where the line run according to the courses and distances named in the deed, terminates. But even if it were a little nearer, it would be an unwarrantable assumption to adopt the hypothesis of the defendant’s counsel, and thereby change the location of the fifth and ninth lines, and the three intermediate lines, from their clear and explicit location by the courses and distances specified in the deed. Even if there had been a monument described in the deed near the Castello house, as the termination of the ninth course, and its location shown, it would only control the course and distance of the single line described as reaching it; it would not operate back to disturb the location of previous lines. Where there is a conflict between courses and distances on the one hand, and monuments on the other, mentioned in the description in the deed, the courses and distances must yield to the monuments. But in order for the application of this rule, the existence and location of the monuments must be proved. From the very nature of the case, parol evidence is admissible to prove this, and identify the monuments described in the deed. If they once existed, but have been destroyed by time or other cause, their former existence and location may be shown by parol; and if clearly identified, they will still control courses and distances. But if no monuments are mentioned in the deed, or if mentioned, and their existence and location are not shown, the courses and distances govern. In the case at bar, no monument is mentioned in the deed, as already stated, that is shown to conflict with the courses and distances. In the construction of a deed, in order to warrant the court in assuming a mistake in the deed in the course of a line, and substituting another, the deed itself, or the deed with proof of such facts as are competent to be shown in aid of the construction of a written instrument, must contain the necessary elements to make such assumption a matter of legal construction of the deed, as contradistinguished from matter of extrinsic proof. The case at bar is not such case. The other evidence relied on by the defendant’s counsel is not of a character and force to justify rejecting the courses and distances called for in the deed on that part of the line in dispute, there being no monuments to conflict with them.

Judgment affirmed.