Worthington v. Hylyer

When the description of an estate intended to be conveyed includes several particulars, all of which are necessary to ascertain the estate to be conveyed, no estate will pass except such as will agree to every particular of the description ; but if the description be sufficient to ascertain the estate intended to be conveyed, although the estate will not agree to some of the particulars in the description, yet it shall pass by the conveyance, that the intent of the parties may be effected.

This was a writ of entry brought in the county of Berkshire, by the demandants, executors of the last will of John Worthington, Esq., deceased, upon a mortgage deed made by one Azariah Ashley to the testator of the demandants, for securing to him the payment of I00Z. due to him from Ashley, according to a promissory note mentioned and described in the condition of the deed. Upon not guilty pleaded, the cause was tried before Bewail, J.,at Lenox, September term, 1806, and a verdict found for the tenants, subject to the opinion of the Court, upon the report of the judge who sat on the trial, which was as follows: — “ The evidence for the demandants in this case was a deed, dated April 15th, 1786, to John Worthington, the demandants’ testator, conveying ‘all that my farm of land in said Washington, on which I now dwell, being Lot No. 17 in the first division of lands there, containing 100 acres, with my dwelling-house and barn thereon standing, bounding west on land of Joseph Chaple, northerly by a pond, easterly by Lot No. 18, and southerly by Lot No. 19, having a highway through it.’ ” Also the testimony of John Lancton and Zenas Noble, by whom the following facts were proved, viz., that from 1782, to the date of the mortgage deed, and afterwards, Azariah Ashley lived in a house upon the easterly side of the county road, where the defendant Hylyer now lives, upon a tract of land latterly known by the name of the Hylyer farm, but formerly by the name of Granger’s Grant; that opposite to this tract, and separated from it only by the county road, lies a tract of land distinguished and known as Lot No. 18, and adjoining to that, farther west, is another tract, distinguished and known as No. 17, in the division of said township by the proprietors ; that these three adjoining tracts of land, excepting the separation by the county road, were, at the date of the mortgage deed declared on, the property and in the occupation of the said Ashley; that the said Lot No. 17 is bounded westerly on lands of Chaple, northerly *by a pond, easterly [*197] by Lot No. 18, and southerly by Lot No. 19; that, in 1786, there was no road through No. 17, excepting a foot path, in which the neighbors were accustomed to travel; that, 16 or 17 years since, a town road had been laid out and established through No. 17; that some part of No. 17 had been cleared before the year 1780; but that no improvements have been made upon it since that time; that a great part of it is unimprovable, and of no value but for rocks and sand ; and that this lot was not worth in 1786 one dollar per acre, and is not at this time worth more than one dollar and fifty cents per acre. The parties agreed that, at the time the said deed was executed, John Worthington, the grantee, lived at Springfield, in the county of Hampshire, that the deed was executed there, and is in his handwriting. The tenants, on their part, gave in evidence a deed by Azariah Ashley, dated September 6, 1793, acknowledged and recorded the same day, by which, for the consideration of 300Z., as therein expressed, he conveyed to Israel and William Ashley, in fee simple, a tract of land, part of a tract granted to Daniel Granger, and is that part on which the dwelling-house of the said Azariah then stood. And it appeared from the testimony further adduced in the case, and from the admission of the parties, that the said Israel and William, two of the defendants, were the cousins of the said Azariah, and that the said Hylyer, the other defendant, is the tenant of the said Israel and William, upon the premises conveyed to them by the deed last mentioned, being the same dwelling-house and farm occupied b) the said Azariah on the 15th of April, 1786, and described by the demandants in their writ. The demandants offered to show further, by testimony, that Azariah Ashley, in his lifetime, declared that the consideration of the said deed to the said Israel and William was not 3007., as therein expressed, but 1007. only. The judge refused to admit that evidence, and directed the jury to find a verdict for the tenants, which was taken, subject to the opinion of the Court, as aforesaid. And it was agreed that if it should be their opinion that the [*198] demandants ought*to recover the demanded premises in this action, the verdict should be set aside, and a verdict entered for the demandants, or a new trial granted, as the Court should order, † The action stood continued to the last September term in Berkshire, and from thence was continued nisi. In the interim, the counsel submitted their arguments in writing to the Court, to the following effect: —