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sufficient definition, with convenient certainty of what is intended to pass by the particular instrument, a subsequent erroneous addition will not vitiate it.' The description, so far as it is false or erroneous, applies to no subject at all, and so far as it is true applies to one only. Descriptions in conveyances of real estate will be construed, if possible, so that no part will be rendered inoperative. When the obvious intention of the parties to the instrument is that all of the elements of the description are necessary to the identification of estate. the instrument will be ineffectual as a conveyance if no property belonging to the grantor at the time of its execution and delivery can be found corresponding with every element of the description. Only such lands as are found belonging to the grantor complying with all the particulars of the description will pass by the instrument, although it may appear that it was the intention of the parties that other lands should pass also, but which fall within only a part of the description."

§ 18. What is an Erroneous Description Within the Rule. -In determining what is a false description to be rejected in order to give effect to a conveyance of real estate it must be remembered that a particular or expressed description always controls a general or implied description, and it is quite immaterial in what order they appear in the instrument. But in order to have this effect the particular or expressed description must be certain. If it appears upon the face of the instrument to be in any degree uncertain or obscure, it will be

'Llewellyn v. Earl, etc., 11 M. & W. 189; Barton v. Dawes, 10 C. B. (70 E. C. L.) 261; Broom's Legal Maxims, 629.

2 Weber v. Stanley, 16 C. B. N. S. (11 E. C. L.), 755; Thomas v. Thomas, 6 T. R. 676.

Lane v. Thompson, 43 N. H. 320; Walters v. Breden, 70 Pa. St. 238; Herrick v. Hopkins, 23 Me. 217.

42 Am. & Eng. Ency. 497; 3 Washburn on Real Property, 400; Warren V. Goggswell, 10 Gray (Mass.), 76; Brown v. Saltonstall, 3 Me. 423.


2 Am. & Eng. Ency. 498; Warren v. Coggswell, 10 Gray (Mass.), 76; Brown v. Saltonstall, 3 Me. 423; Sheppard's Touchstone, 29: Griffiths v. Penson, 1 H. & C. 862; Morrell v. Fisher, 4 Exch. 591; Llewellyn v. Earl, etc., 11 M. & W. 183; Webber v. Stanley, 16 C. B. N. S. 698; Smith v. Ridgway, L. R. 1 Ex. 46, 331.

62 Am. & Eng. Ency. 498; Howell v. Saule, 5 Mason (U. S.), 410; Wilson v. Cobot, 18 Pick. (Mass.) 553; Jones v. Smith, 73 N. Y. 205; McEwen v. Lewis, 26 N. J. L. 451; Gans v. Aldridge, 27 Ind. 294.



rejected as false and the general description will prevail.' Where different parts of the description are inconsistent, the first part, as a general rule, will prevail over the latter. If the description is partly written and partly printed, and inconsistent, the printed part, under the general rule of construction, must give way to the written, as expressing the true intention of the parties. And where the essential facts of the description are equally inconsistent, the courts usually allow the person taking the estate to choose that which is most favorable to him."

§ 19. Courses and Distances.-In arriving at the bounds of a survey the courses and distances yield to natural or artificial objects of demarkation, but where there are no monuments parol evidence will not be permitted to control or vary the courses and distances. When two descriptive calls are given in a survey, both of equal dignity, as a call for a corner and a marked line, preference will be given to that one which is most consistent with the intention to be derived from the entire description."

Ordinarily, calls for natural or artificial monuments will control courses and distances; but a call for course and distance will not be subordinated to a call for an unmarked line in a prairie, which can not itself be ascertained except by running the boundaries of another survey according to course and distance. Johnson v. Archibald, 78 Tex. 96; 14 S. W. Rep. 266 (1890).

Where neither the corners of plaintiffs' nor defendants' land are satisfactorily established, and there is a well-established and identified corner of another survey, from which, by following course and distance, defendants' survey can be constructed, such course should be followed, though the boundaries thus established include land within the boundaries of plaintiffs' junior survey. Griffith v. Rife, 72 Tex. 185; 12S. W. Rep. 168 (1891).

Where a description by metes and bounds is supplemented by a reference to a particular subdivision of land to indicate the tract intended to be conveyed, the former will not necessarily be controlling, when it would leave a strip 13 feet front by 100 deep in the grantor, which clearly appears to have

1 Sawyer v. Kendall, 10 Cush.(Mass.) 241; Ela v. Cord, 2 N. H. 175; 9 Am. Dec. 46; Barney v. Miller, 18 Iowa, 460; Haley v. Amestoy, 4 Calif. 132.

5 Black v. Pfaff, 101 Mass. 538: Blaney v. Rice, 20 Pick. (Mass.) 62; 32 Am. Dec. 204; Drew v.Swift, 46 N. Y. 209; Bagley v. Morrill, 46 Vt. 91;

* McNear v. McComber, 18 Iowa, 17; Chadbourne v. Mason, 48 Me. 391; Webb v. Webb, 29 Ala. 606.

32 Am. & Eng. Ency. 499; Melvin v. Proprietors, etc., 8 Met. (Mass.) 27; Esty v. Baker, 50 Me. 331.

Welch v. Phillips, 1 McCord (S. C.) 215; Cherry v. Slade, 3 Murph. (N. C.) 82.

Harrell v. Morris (Tex.), 5 S. W.

* Gerald v. Freeman, 68 Tex. 201; 4 625; Am. Dig. 1887, 136.

S. W. Rep. 256 (1887).

been intended to be conveyed by the latter description. Cannon v. Emmons, 44 Minn. 294; 46 N. W. Rep. 356 (1890).

In ejectment for land claimed by plaintiff under a patent from the United States the evidence showed that the land in controversy was a strip along the southern part of his grant; that the southern line, as located by a wellknown natural monument, which was one of the calls of the survey, included this strip; but that if the southern line was run by course and distance it did not include the strip, which in that case belonged to defendant. Held, that the evidence was not sufficient to sustain a judgment for defendant, as the natural monument called for in the survey must prevail over the courses and distances when there is a discrepancy. Adair v. White, 85 Cal. 313; 24 Pac. Rep. 663 (1890).

A natural monument, such as a ditch, will control both courses and distances when there is no question of its actual location. Greenleaf v. Brooklyn, F. & C. I. Ry. Co., 50 Hun, 606; 3 N. Y. Sup. 222 (1889).

Where a patent calls for unmarked lines of surrounding surveys, the position of which can be accurately ascertained, and there is no evidence as to how the survey was actually made, such unmarked lines will prevail over courses and distances, in case of a conflict. Maddox v. Turner, 79 Tex. 279; 15 S. W. Rep. 237 (1891).

Where the defendant's title to a certain tract of land depended upon whether the land was included in plaintiff's survey or not, and it appeared that, if the boundaries of plaintiff's land were determined according to the course and distance called for in plaintiff's patent, the tract would not be therein included, while it would if the boundaries were determined according to certain marked corners called for, held, that the marked corners called for should be taken as the true corners, and the course of the lines thence run as designated in the field-notes without regard to distance. McAnninch v. Freeman, 69 Tex. 445; 4 S. W. Rep. 369 (1887).

Plaintiff in ejectment claimed a line different from that laid down in the survey, by reason of the known location of his N. E. corner. Plaintiff testified that a stake was set at this corner by the original surveyor; but this stake only stood two years. Some years after, a surveyor started with the initial point of plaintiff's survey, and running on course and distance found the witness tree of the N. E. corner, and located that corner as laid down in the original survey; and the line so run was treated as the true line by adjoining owners without objection from plaintiff. Held, that the evidence in support of the N. E. corner, as claimed by plaintiff, was sufficient to prevail over the courses and distances. King v. Brigham, 19 Or. 560; 25 Pac. Rep. 150 (1891).

In arriving at the bounds of a survey, courses and distances yield to natural or artificial objects of demarkation; but the former will not be made subordinate to an unmarked prairie line, which could not itself be ascertained except by running the boundaries of another survey according to course and distance. Gerald v. Freeman, 68 Tex. 201; 4 S. W. Rep. 256 (1887).

The owner of a lot in the city of Rochester, of the area of about one-half acre, rectangular in form, fronting 274 feet on a street, and abutting on the rear for the same distance on a canal, the location of both, as well as the other lines, being undisputed, conveyed a portion, by description, of “137 feet front and rear, measuring from G. H.'s north line on G. street, and also 137 feet from G. H.'s south line on the canal; being the piece of land occupied



as a garden by the grantor." The lot was divided by a fence, one side being used as a garden; the fence starting on G. street midway, but striking the back line at the canal at a point 19 feet from the middle of the lot. The fence was not mentioned in the deed. Held, that the reference to the garden was too indefinite to control the calls for exact distances from known bounds, and the divisional point on the canal should be located 137 feet from G. H.'s line. Harris v.Oakley, 54 Hun, 635; 7 N. Y. Sup. 232 (1889). An entry contained a call "beginning at the east corner" of a certain other entry. A subsequent call was "so as to include the head-waters of S.," a certain stream. Held, that, it being necessary to begin at the northeast corner in order to include said head-waters, the first call was made special by the second call. Bleidorn v. Pilot Mountain Coal & Min. Co. (Tenn.), 15 S. W. Rep. 737; Am. Dig. 1891, 476.

§ 20. Government Surveys-Courses, Distances and Quantities Must Yield to Monuments and Marks Erected by the Original Surveyor.-By this system the public lands are first surveyed into townships, six miles square, the lines of which are required to correspond with the cardinal points. At the corners of the townships, appropriate monuments are required to be erected, between which, all along these lines, other monuments are erected, at intervals of one mile. The townships are subsequently divided into thirty-six sections, by running parallel lines each way, from those intermediate monuments on one side of the township to the corresponding ones on the side opposite. At the corners of the sections, where these lines cross each other, and equidistant between these corners, monuments are also erected. This divides the township into sections and those sections into quarter sections. Only the external lines, however, of the sections are actually run upon the ground by the original surveyor. The lines thus actually run by the survey or become the true external boundaries of the sections, and, of course, of their subdivisions. Where the boundaries of the subdivisions have not been actually run, they must be ascertained by running true lines from one established point to another. The original monuments, when ascertained, afford the most satisfactory, and, we may say, conclusive evidence of the lines originally run, which are the true boundaries of the tract surveyed, whether they correspond with the plat and field-notes of the surveyor or not. All agree that courses, distances and quantities must always yield to the monuments and marks erected or adopted by the original surveyor, as indicating the lines run by him. These monuments are facts; the field-notes and

plats, indicating courses, distances and quantities, are but descriptions, which serve to assist in ascertaining those facts. Established monuments and marked trees not only serve to show with certainty the lines of their own tracts, but they are also to be resorted to, in connection with the field-notes and ether evidence, to fix the original location of a monument or line which has been lost or obliterated by time, accident or design.'

§ 21. Boundaries Governed by Calls and Monuments.— In actions between others than the original parties to a deed, the intention of the parties to the conveyance can not be inquired into for the purpose of ascertaining what was sought to be conveyed, if the calls in the deed refer to fixed monuments or points. Where there is a call in a deed which was in fact not intended by the parties, and is found, and is unambiguous, the intention of the parties can not be made to take the place of the call; for if this could be done, titles and lands would be transferred by the intention of the parties and not by the deed. Effect will be given to the intention of the parties in respect to calls, only when the words of description they employ will admit of it, and are not inconsistent with the intention proved. Further than this a court of law can not go; beyond this is the region of equitable jurisdiction under the head of mistake."

It is a

§ 22. Boundaries Adjusted by Parol Agreements. familiar doctrine of the law, that the title to real estate can not be transferred by parol. It is equally forbidden by the principles of the common law, and the express provisions of the statute of frauds. It is settled, however, that the proprietors of adjoining tracts of land may, by a parol agreement, settle a disputed boundary line between them. Such an adjustment of the boundary, if followed by corresponding possession, may binding on the parties, not because it passes title, but because it determines the location where the estate of each is supposed to exist."

1 Caton, J., in McClintock v. Rogers, 11 Ill. 295 (1849); Miller v. Buler, 25 Ill. 163; Tolman v. Race, 36 Ill. 472: Colvin v. Fell, 40 Ill. 413.

* Gillespie v. Sawyer, 15 Neb. 298; 19 N. W. Rep. 449 (1884); Piercy v.

Crandall, 34 Cal. 343; Jackson v.
Wendell, 5 Wend. (N. Y.) 146; 1
Greenl. Ev. § 391.

3 Treat, J.. in Crowell v. Maughs, 2 Gil. (Ill.) 423 (1845); Jackson v. Dysling, 2 Caines (N.Y.), 193 (104); Kip

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