Greely v. Steele

2 N.H. 284

• Court: Superior Court of New Hampshire
• Decided: October 15, 1820
• Status: Published

Opinion

Woodbury, J.

In this case the covenant of seisin is not broken, if the defendant, in January, 1804, which is the date of his deed, had either title or possession of the land described. 1 N. H. Rep. 178-8 Cran. 232.—14 John. 254.—2 Mass.Rep. 439.—4 ditto 408.

But, as it is probable from the evidence, that the Ray right in Harwick was then and long afterwards uncultivated, the defendant has shown no actual possession, and consequently must rely on his title.

Before the examination of that title, it may be proper to remark, that the deeds of this right in A. D. 1796, and in A, D. 1809, do not prove a title in any other person; because the defendant claims under a sale for taxes in A. D. 1798 ; and, therefore, whoever may have owned it in A. D. 1790, it passed, by the sale of A. D. 1798, to the defendant’s grantors, if the description of it in the several conveyances has not been insufficient. The other deed of A. D. 1809 was from a person, who was not proved to have either title dr possession; and consequently is not eyidence to impair the rights of the defendant.

(1) 13 John. 486.

The question then recurs, whether the defendant has shown in himself a legal title to the R#y right. We take it for granted, under the evidence and admissions at the trial, that only one Ray right existed in Harwich; that the Ray right was duly taxed and sold in A. D. 1798; that the description of it in the collector’s deed was correct exepting the ehristian name of Ray, and that whatever title was acquired under that deed passed by subsequent conveyances to the defendant. The true enquiry, then, is not, whether a deed becomes void, when a mistake is made in the name of either party to the deed. For here the constable, as agent for the public, was One party, and the original grantor of the defendant the other party; and both of their names are correctly inserted. But the true inquiry is whether, in the description of premises, a mistake as to the ehristian name of a former owner will avoid the deed.

From an inspection of the charter of Harwich, it is highly probable, that the name of the former owner of this right was Christian Ray. But, being written illegibly and abbreviated, the constable may well have entertained doubts concerning the name, and, therefore, ahundantia cautela-,, appears to have sold the right under the names of both Christian and Christopher Ray. There was only one Ray right in the town ; the constable received only one price or payment; the sale was to only one person ; and only one deed of a Ray right was executed. Yet in that deed he thought best to describe it as the right of Christopher, instead of Christian Ray. In this he now appears to have erred.— Bat such mistakes are not unfrequent;(1) and ip respect to them the law seems well settled.

(1) Maxims 13. (2) Plow. 191. —Hob. 171.— 7 John, 217

* (3) 9 Mass. Rep. 311-2. (4) Dyer 376. (5) 4 Mass. Rep. 205.

In the description of premises conveyed, if, says Lord Bacon,(l) there be introduced into the deed “ a circumstance “ mistaken and false, it will not frustrate the grant of particulars, sufficiently once ascerlained.”(2) Here the right is sufficiently ascertained by its being the Ray right, and the only Ray right in the town of Harwich. Hence the mistaken circumstance of the Christian name of Ray, ought not to “ frustrate the grant.”

In Hatch et al. vs. Hatch,(3) Sewall, J. remarked, that the alteration of Joshua to Joseph Latham, in the description of land, where Joshua was inserted by mistake, did not defeat the deed. This unquestionably was on the ground of the irnmatereality of the alteration; because the land would pass notwithstanding the mistake. But a case, directly in point, is Wyndham vs. Wyndham(4) the principles of which without reference are detailed by Parsons, C. J., in Worthington et al. Ex'rs vs. Hyler et al.(5) “ Thus, if a man M convey his house in D. which was formerly R. Os. when “ it was not R. Os. but T. Os. the house in D. shall pass, if “ the grantor had but one house in D.” Vide etiam, 5 East 7, 9.—8 ditto, 103.—Cr. Cha. 473.—1 Maul. & Selw. 299.—Phil. Ev. 412.—Vin. Ab. Grant's R. 3.-Hob. 171.†

Judgment for the defendant.

is John. 80, Jackson vs. Root & H. Jackson vs. Loomis; 108, Jackson vs. Ransom.-19 John. 449, Loomis vs. Jackson.