Bell v. Morse

6 N.H. 205

Opinion

Richardson, C. J.

delivered the opinion of the court.

*

The question is, whether the deed of Thomas Morse, dated April 1, 1821, conveyed to James A. Morse the five acres, which had been conveyed to the grantor by Samuel Wood, or the forty acres, which had been conveyed to him by Wood and wife ?

It does not admit of a doubt that the tract of five acres is clearly designated, in that deed, as the granted premises. It is not the land conveyed to the grantor by Wood and wife, but the land conveyed to him by Wood, that is mentioned. And the land to be granted is further designated by a reference to the book and page where the deed, under which the grantor held the land granted, was recorded in the registry of deeds. It is therefore beyond all question, that the tract of five aeres, and nothing beside that tract, is described as the granted premises in that deed.

But there are circumstances in this case, which certainly render it not improbable that the land, intended to be conveyed by that deed, was, in fact, the forty acres.

One of these circumstances is, the fact, that a part of the forty acres, which was actually staked out by the parties, at the time, is excepted in that deed. Every one must at once perceive, that an exception, to have any force or effect, must be of a part of that, which would otherwise pass by the deed, and that, when one thing only is granted, to except another thing from the operation of the grant must be idle and nugatory.

And, in the mortgage, which was made at the same time and must be considered as part of the same transaction, although the land granted is described as the same land conveyed to the grantor, by the grantee, on the same day, yet, there is a further description in which the granted premises are stated to be the land which the father of James A. Morse then occupied. And it is found that the father of James A. Morse never occupied the five acres, but was in the occupation of the forty acres at that time.

It also appears that James A. Morse never went into possession of the five acres. And in his deed to the de-mandant, he describes the granted premises as a tract of forty acres, more or less.

Now these circumstances certainly go to countenance the conjecture, although the five acres are in fact granted by Thomas Morse’s deed, still, the intention was, in truth, to grant the forty aeres, and that the forty acres were understood by the grantee, in that deed, to have been conveyed to him.

But admitting it to be clear, beyond all doubt, that the description of the land granted in that deed is all mistake, and that the forty acres, and not the five acres, were intended and understood by the parties to be granted, what is to be done in this case ? Even then, this will not be a case where some of the circumstances inserted in the description of the granted premises are false and mistaken, and where, when those circumstances are rejected, the thing intended to be granted may be clearly ascertained by the deed. But this is, in fact, a case where, if there be a mistake, it is in granting one tract of land instead of another tract. The description is all mistake ; and if we reject the whole description as false and mistaken, then nothing passes by the deed, and not only that instrument, but the mortgage also, will be wholly inoperative and void. Whatever else the intention of the parties to those deeds might have been, it is certainly not to be supposed their intention was, that they should be wholly inoperative.

There are cases, in which mistakes in deeds may be rectified in courts of equity. 2 Johns. C. R. 585, Gillispie v. Moore; 4 Mason, 349, Dunlap v. Stetson; 2 Cowen, 133; 1 Johns. C. R. 594; 2 Mason, 367; 3 Mason, 343.

But, in a court of law, where a particular tract ofland is granted, by a deed, in clear and express terms, the grantor, and those claiming under him, are estopped to say that the land, thus described in the deed, was inserted by mistake, and that another tract, and not that, was intended to be granted.

Thus, in Leland v. Stone, 10, Mass. Rep. 459, where one conveyed, with warranty, divers parcels ofland, one of which, not belonging to him, was inserted in the deed by mistake, it was held that he was bound by the warranty even in relation to the parcel inserted by mistake.

And in the case of Barnes v. Learned, 5 N. H. Rep. 264, there was a recovery of nominal damages, upon a covenant of warranty, with respect to a parcel ofland inserted in the deed by mistake.

We are, therefore, of opinion that the demanded premises- passed frota Thomas Morse lo James Á. Morse, by the deed of April 1, 1821.

jt appears the tenant is in possession under a title derived from Thomas Morse. But Thomas Morse was only a mortgagee when he conveyed to the tenant. We have no doubt that, under certain circumstances, a conveyance of the land by a mortgagee will pass the debt secured by the mortgage. But there are certain cases in which a deed of the land, by the mortgagee, will pass nothing. Thus, where a note is secured by a mortgage, if the mortgagee has transferred the note ; he cannot af-terwards convey the land. And we are of opinion, that it is not enough to show a deed from a mortgagee, in order to prove that the land passed, but it must be made to appear that the debt passed to the grantee- At least, it must appear that the mortgagee had a right to transfer the debt to the grantee. As no account is given of the debt secured by the mortgage, in this case, we think that the tenant is not entitled to hold the land against the demandant.

Parker, J. having been of Council did not sit.