Summary
From the circuit court of Warren county.
Hon. Balph North, Judge.
The appellant, Mary O’Herrin, brought this ejectment suit against appellee, Beuben Brooks, to recover a certain lot situated in that part of the city of Vicksburg known as “ Pinckardia,” and described as follows:—
“That part of lot (4) four, of a survey made by Brown & Johnson, of a part of square 6, Pinckardia, called ‘ little Veranda,’ and more particularly described as follows: Beginning at the southwest corner of the square, being the southwest corner of lot 4, ‘ little Veranda’ survey, thence north, along Walnut street, 59.5 feet; thence east 153.1 feet; thence south 63.2 feet; thence west 161 feet, to the place of beginning.”
The lot is a part of the lands of one Pinckard, who as early as 1836 was the owner of a large tract in the said city, and wrho, during that year, caused it to be surveyed and platted. The title to one subdivision, known as square 6, Pinckardia, became vested in 1854, in Brown & Johnson. This square was bounded on the west by Walnut street, and was divided into lots, five of which fronted on Walnut street. These were numbered from 40 to 44 inclusive, the lot number 40 being the southernmost one.
Both plaintiff and defendant claim title from Pinckard, the common source, and also through Brown & Johnson. After the making of the plat, and before it was recorded, Pinckard sold a part of the tract by metes and bounds to Bobbins and Davenport, and Bobbins acquired the interest of Davenport at sheriff’s sale in' 1840. This tract, including 16.82 acres, has been since known as the “ castle property.”
The north line of the “ castle property,” by actual measurement according to the metes and bounds given in the deed, was the south line of square 6, and also coincided with the north line of south Madison street. In 1848, Winn’s map of Vicksburg was adopted as the official map of the city, and was the only map of Vicksburg until 1870. On this map the “castle property” of Bobbins is laid down as separated from square 6, Pinckardia, by South Madison street.
Soon after their purchase of square 6, Brown & Johnson built thereon four cottages, which from their peculiar shape were known as “ little Verandas.” These four houses were built on lots 41, 42, and 43, leaving lot 40 vacant. This lot 40 was unenclosed and unsurveyed, with no defined lines, and no street actually marked off or in use adjoining it.
In 1862, Brown & Johnson being desirous of selling these four houses, divided the three lots on which they were built into four each fronting 52 feet and 9 inches on Walnut street, and numbering them one to four consecutively, lot number 4 being the southernmost one, and immediately north of lot 40 of the original survey. During the same year, and about the same time, they sold the four lots and houses, the first one sold being lot number 2 to one McCabe. Lot number 1 was sold to Elliott, and lot number 3 to Mullen. In each of these three conveyances the lots are given a frontage of 52 feet and 9 inches on Walnut street. Brown & Johnson, without having made any actual survey of the lots in square 6, made a plat of them and attached it to the deed of McCabe. This was not put upon record until some time after the deeds had been executed to purchasers of the other three lots and houses. On this plat these four lots are called the “ little Veranda” block. On this plan neither lot number 40, on which no house was built, nor South Madison street is indicated; but the “ castle property” of Bobbins is made to appear as being immediately south of lot number 40. The last of the lots to bo sold was lot number 4, which was sold to appellant, Mrs. O’Herrin. This lot is described in her deed as follows :—
“Lot 4, ‘little Veranda,’ commencing at the corner of no. 3, sold to Alex. Mullen on Walnut street, and running along Walnut street, south about 56 feet, or to the full extent of said lot, be the measurement more or less, and then eastward the full depth of said lots; it being distinctly agreed that we sell the whole of said block on the south end, after taking off what had been sold to J. Elliott, no. 1, M. McCabe, no. 2, and A. Mullen, no. 3.”
In the deeds to these four lots the words “ about,” or “ more or less,” are used in connection with the distances on Walnut street. The four purchasers took possession of their respective houses on the lots sold to them, and have since occupied them, with fronts shown on the plat, and fences were built around each lot. No further conveyance was ever made by Brown & Johnson of any property in said square, and they have paid no taxes on any property therein since making these several conveyances.
The defendant, Brooks, is in possession of the lot sued for, and claims the same by virtue of a quit claim deed from the executor of Johnson, and also a quit claim from the heir of Brown. Both deeds having been executed in May, 1887, and duly recorded. In each of these deeds the land is described as “ lot 40, square 6, Piuckardia.”
The contention on the part of plaintiff is that, inasmuch as lot no. 40 is south of the lots conveyed to Elliott, Mullen and McCabe, and between them and ■ the castle property of Bobbins, she, appellant, is the owner thereof by virtue (1) of her deed from Brown & Johnson, which, in describing the lots conveyed to her, recites as follows: “ It being distinctly agreed that we sell the whole of said block on the south end after taking off what has been sold to Elliott, no. 1, McCabe, no. 2, and Mullen, no. 3and (2) by virtue of the plat attached to McCabe’s deed, which without indicating South Madison street, places appellant’s lot immediately north of the adjoining “ castle property” of Bobbins.
The case was tried by the court, by consent, without a jury, upon an agreement as to the facts. Judgment was rendered for the defendant, and plaintiff appeals.
1. Brown & Johnson attempted to fix and locate with absolute certainty on the plat the exact boundaries of the property they had designated as “little Veranda block.” It is undeniable that the boundaries of the block are in all respects correctly stated and indicated, and the southern boundary of square 6 is the “castle property” of Bobbins. There is no dispute as to the fact that the northern boundary of castle property is the southern boundary of square 6, and the north line of South Madison street, but wdthin these limits is found the exact amount of land sold to Bobbins by Pinckard. Brown & Johnson were careful to designate plainly the southern boundary of their land employing not only the name of the owner “ Bobbins,” but the term by which his property was generally known, i. e., castle property. This exceptional precaution in the location of the southern line lends emphasis to the presumption that it was their intention-to fix this line beyond doubt. There is nothing in either the plat or the deeds to show that any attention was paid to South Madison street. In fact it is not controverted that there was no street ever worked or used or surveyed, the lot in controversy being a hollow with no level land on it. So that the question whether there was a street or not is of no consequence.
As the plat does not accurately indicate either the shape or dimensions of the property, and as the boundaries are actually given, the lot will be located by the controlling consideration of its boundaries or monuments.
The fact that Brown & Johnson ceased, after selling the lots in 1862, to pay taxes on any of the land is persuasive that they intended to convey all the property belonging to them in square 6.
2. It is evident that Brown & Johnson intended the boundaries to control, (1) because the land was extremely hilly and broken and the dimensions and shape were not known, or were of little consequence; (2) they did not undertake to fix with accuracy the width or frontage of the lots sold, but used in all of them the words “ about” and “ more or less.” But in the deed to appellant they use the significant words, “ it being distinctly understood that we sell the whole of said block on the south end, after taking off what has been sold to Elliott, McCabe and Mullen.” It is difficult to establish by the use of language a clearer intention to avoid uncertainty.
3. Monuments will control courses and distances, and in cases of discrepancies in description courses and distances must yield to boundaries. This is the rule of law prevailing in all the states. Frederick v. Youngblood, 19 Ala. 680; Doe ex dem. Phillips’ Heirs v. Porter, 3 Ark. 18; Johnson v. Moor, 2 Boot. 252; Dale v. Smith, 1 Del. (Chy.) 1; Lyman v. Qedney, 114 111. 388; Mc-Cown v. Delany, 3 Bibb, 46 ; Pierce v. Faunce, 37 Me. 63; Jones v. Plater, 2 Grill, 125 ; Powell v. Clark, 55 Mass. 355; Newman v. Foster, 3 How. 383 ; Rutherford v. Tracy, 48 Mo. 325; Faure v. Martin, 3 Seldon, 210; Shultz v. Young, 3 Ired. (Law) 385; Peay v. Fleming,' 2 Hill (Chy.) 98; Bullard v. Copps, 2 Humph. 409; Pendleton v. Stewart, 5 Call, 1; Ayres v. Watson, 113 U. S. 594.
We have no fault to find with the principles of law announced in the cases cited by appellant, although very few of them have any applicability to the matter at bar.
Rutherford v. Lacy, 48 Mo. 325, cited by appellant, is properly in point. '' In a deed of land, the description by lot should prevail over that by bearings and distances. Where the language conveying premises was 'Lot No. 3, in Block 87, in the old town of Hudson, now Macon, beginning at the northeast corner, etc.,’ the description actually embracing a less area than lot 3 ; held that all of lot 3 was conveyed.” We do not dispute these principles, but rve invoke them.
A lot of a designated number in a citjr or plan or plat is a monument, and will control courses and distances. Rutherford v. Lacy, supi’a; Lincoln v. Wilder, 29 Maine, 169; Sayers v. City of Lyons, 10 Iowa, 249. And a description by the number of the lot will control a reference to adjacent streets, and correct a mistake in the courses and distances bounding the lot. Nash v. Wilmington, etc., R. R. Co., 67 N. C. 413; Jaelcsony. Marsh, 6 Cowen, 281.
Applying the above cases, and those from Maine and Maryland and some other states cited by appellant, to appellant’s deed from Brown & Johnson, we find that they conveyed to her a lot of land by a mentioned plat, on which the lot was accurately described by metes and bounds, as to its frontage and width.
She got lot 4 of that plat, and, to make more certain what was conveyed, the deed gives its metes and bounds: " Commencing at the corner of No. 3, sold to Alex. Mullen, and running south along Water street about 56 feet, or to the full extent of said lot, be the measurement more or less.” " More or less” is a two-edged sword, which cuts both ways. According to the plat, which was not before the parties when they were making the deed, the measurement is less, to wit, 52 feet 9 inches, and that is all that appellant took by her deed.
Even if the “ castle property” was a monument (which it was and is not), the mistake of the scrivener who drew this plat will not operate to convey to appellant two and a half times as much land as she purchased. For where there is a discrepancy between two descriptions, the one will be adopted as to which there is the least liability of mistake. Miller v. Cherry, 3 Jones Eq. 29. A description which is sufficient to identify the premises, and accords with the obvious intention of the parties, will not be vitiated by the insertion of erroneous calls for monuments or other particulars which are repugnant to that description; but such erroneous or mistaken particulars will be rejected as “falsedemonstrations,” and the land as described by the remaining consistent particulars, will pass by the deed. Rogers v. Peebles, 72 Ala. 529; Wright v. Wright, 34 lb. 194; Andrews v. Murphy, 12 Ga. 431; Kruse v. Wilson, 79 111. 233 ; Beal v. Gordon, 55 Maine, 482; Doane v. Wiluutt, 16 Gray, 368 ; Cooley v. Warren, 53 Mo. 166 ; Morse v. Rogers, 118 Mass.- 573, 578; 3 Washb. on Beal Prop., 430, 431; Tiedenran on Beal Prop., § 829 and cases cited.
There is no magic in a monument which will give it invariable control. It controls only because it is regarded as more certain than a given distance. If it should, in a given case, be less certain, the rule would fail with the reason for it, and the monument would yield to the distance, and an artificial monument will yield more readily than a natural one. Higinbotham v. Stoddard, 72 N. Y. 94; Davis v. Rainsford, 17 Mass. 207.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
