Gates v. Lewis

Where the boundaries mentioned in a deodof conveyance are inconsistent with each other, those are to be retained which best subserve the prevailing intention manifested on tho face of the deed.

Trespass quare clausum fre.gif. The trespass was alleged to bare been committed on Right No. 64 in Sherburne, between the 15th clay of July, A. D. 1830, and the commencement of the suit. The defendant pleaded not guilty, accompanied with notice, that he should justify the trespass, by showing title in himself, and also by showing title in Jesse Williams and Josiah Wood, and that he entered, and did the acts complained of, as their servant. On trial the plaintiff read in evidence a deed from said Williams and Wood to Pliny Church, dated January 10, A. 1822, and from Church to the plaintiff, dated October 2, A, D. 1824. The description of the land conveyed in both these deeds was the same, and as follows: — “ a certain piece of land in Sherburne aforesaid, lying and being on the north-east part of the right, or proprietor’s share, drawn or allotted to the name of Jonathan Heath, Jr., bounded as follows, to wit: beginning at a birch tree the northeast corner of said right, thence south, twenty-eight west, on the east line of Sherburne, one hundred and fourteen rods to a stake and stones; thence north, sixty-two degrees west, parallel with the lines of said right, about two hundred and eighty rods, near to the top of the east hill, so called; thence northerly along or near the top of said east hill, in such a direction to the north line of the said right drawn to Jonathan Heath, Jr., which right being numbered sixty-four in the plan of said town of Sherburne, as will include two hundred acres; thence easterly on the north line of said right 64 to the place of beginning.” It appeared in evidence that the north line of said right intersected the east line of the town, about six and one fourth rods north of the birch tree aforesaid. It further appeared that there was an old lino running westerly from said birch tree, which did not correspond with any lot lines, but diverged to the south thirty rods, or more, in crossing the lot; and it did not appear to have been ever regarded as a lot line. The plaintiff showed, that in A. D. 1825, he took possession under the deeds aforesaid, and made improvements extending to the north line of said right. The original title of Wood and Williams was admitted. The defendant offered in evidence a deed from said Williams and Wood to himself, dated July 15, A. D. 1830, of about five acres of land, described in the deed as follows: — “Lying and being in Sherburne, in the county of Rutland, and state of Vermont, on the north-east part of Right No. 64, as numbered on the plan of the town of Sherburne. Beginning at a birch tree standing on the east line of said right, being the north-east corner of the lot conveyed by said Williams and Wood to Pliny Church: thence north, sixty-one degrees west, two hundred and sixty-seven rods to a stake and stones, standing on the north line of said right; thence south, sixty-two degrees east, on the line of said right, two hundred and sixty-seven rods to a stake and stone; thence south, twenty-eight degrees west, six and one-fourth rods to the birch tree, being the first mentioned bounds.”' This deed was objected to, as containing part of the same laud before conveyed by the grantors to Church, and for that reason was excluded by the court. The trespass proved was committed after the execution of said deed to the defendant, and within the boundaries contained in that deed. Lhe defendant brought up the case, on exceptions staling the aforesaid facts.