Flagg v. Bean

Bell, J.

The deed from Flagg to Bean described the premises conveyed as “ three certain pieces or parcels of land situate, &c., bounded S. E. by Bean's land and the cove, N. E. by Cochecho river, W. by Bean's land, land of Boyle and of Hurd, and the road;” and it then adds, “ meaning to convey all the land I purchased of S. JD. Bryant, L. Bean and A. Pinkham, referring to their deeds for particulars and again adding, “ meaning to convey all the land set forth in said deeds, and no more.” The plaintiff contended that this deed conveyed to Bean the land described in the three deeds referred to, while the court instructed the jury that it conveyed to Bean only what those three deeds conveyed to Flagg. It is of course to be kept in mind that the only question presented to the jury was, whether this deed was *60 procured by the defendant, by a fraud practised upon the plaintiff, by falsely reading to him the deed as conveying one undivided half of the land, when the deed had no such language. The court was presenting to the jury the actual state of the title of Flagg to the land, and the operation of the deed upon that interest, as ground for the jury to judge whether there was a fraud on^the part of the defendant, or only very great ignorance on both sides, as to the actual situation of a very complicated title, and as to the effect of the deed upon it; from which they might infer, that the deed was made in its present form merely by a gross blunder. The question, of course, was, what does this deed in fact convey ? The language would convey a fee-simple in all the land comprised within the boundaries set out in the deed, unless its meaning Í3 limited to the land conveyed to the grantor in the three deeds referred to, by the clause, u meaning to convey,” &e. This, expression is twice used, and if the language following this phrase in those instances was found in separate deeds, it would hardly be understood to convey the same meaning. In the first instance it is, “ meaning to convey all the land I purchased by deeds,” &c., and in the second, ‘•'•meaning to convey all the land set forth in said deeds, and no more” But the whole deed is to be construed together j and it seems to us t© be equivalent to the expression, “ meaning to convey all the land I purchased of B., &c., set forth in their deeds, to which reference is made for particulars,” &e.; and such an expression would be limited to the land actually acquired or obtained of those persons by purchase. If the last of the expressions only, was used, “ meaning to convey all the Icrnd set forth in those deeds,” &c., it would not be easy to contend that it was not the intention to convey a fee-simple in all the lands described, if it were not that two of the deeds referred to describe “ one undivided half” of the land, whose boundaries are set forth; and it seems very clear that a deed which describes an entire tract of land by its boundaries, and then *61 adds, meaning to convey all the land set forth in such a deed, and no more, must be limited to one half of the land described, if that deed, upon referring to it, conveys an undivided half merely. But taking the two expressions together, we think the opinion expressed by the court below, that nothing passed by Flagg’s deed to Bean but the estate which he acquired by the deeds referred to, is correct.

Flagg had an estate in three and five-eighths acres of the lands embraced in the boundaries given in this deed, as tenant by the courtesy of his late wife, and of which his daughter was seized of the reversion, and this is set forth, that is, described, in the deed of Bryant to Flagg, and yet there could not be the slightest pretence for considering it as included in Flagg’s deed to Bean, because this land, though set forth in Bryant’s deed, was not purchased of him.

The general principle, that “ in a conveyance of land by deed, a general description of the premises conveyed may be limited and restrained by a particular description,” is well settled in the case of Barnard v. Martin, 5 N. H. Rep. 536 , where it was held that a deed conveying “ my homestead farm in B., that I now live on and improve, it being the same land conveyed to me and J. M. by C. B., by his deed of December 2d, 1816, said J. M.’s half of which he conveyed to me, by his deed of December 19th, 1825,” did not convey a parcel of adjoining land, conveyed to the grantor by C. B. in 1819, though occupied with the other as one farm. Though the general description, if it stood alone, might be sufficient to pass the premises, yet when the grantor, by reference to his deeds, has declared what he intended by his homestead farm, the general description is restricted. The question decided in this case was carefully reexamined and affirmed in the case of Woodman v. Lane, 7 N. H. Rep. 241 , where it was held that a deed, describing the premises conveyed as u my homestead farm in S., and is the same land conveyed to me by G. W. and R. W.,” giving the dates and place of record of those deeds, and *62 referring to them for a more particular description, did not include another tract purchased of R. S., though occupied for fifteen years, with the other tracts, as part of one farm. In neither of these cases is the language any more clear or explicit than it is in the present case; and the principle there established,' we think, must limit the general descripr tion in Flagg’s- deed to Bean, to the undivided half set forth in two of the deeds, and to the particular interest purchased by the deed of Bryant. Jackson v. Stevens, 16 Johns. 114 .

II. The only interest which S. D. Bryant had in the land, which he undertook to convey to Flagg, was an estate for his own life, as tenant by the courtesy of his wife’s land. He attempted to convey in fee. His conveyance was a valid transfer of his own interest, and of nothing more. His wife, by joining him in the conveyance, using proper and suitable language to pass her interest, agreeably to the decisions in -Massachusetts, might have passed her interest, and their joint conveyance would have made an effectual transfer of the fee. Bruce v. Wood, 1 Met. 542 , and cases there cited. See 2 N. H. Rep. 547 .

If the opinion of Woodbury, J., in Elliot v. Sleeper, 2 N. H. Rep. 525 , that whoever signs, seals and delivers a written instrument, shall be bound by the promises contained in it, and by the same reason, by any grant or agreement to which he might make himself a party, should even be adopted as to persons not under any disability, there would seem to be good reasons against extending the principle to the case of married women. The principle, understood to be settled by the usage and custom of this part of the country, has never, we believe, been understood to go further than this, that “ a husband and wife must so far join, in order to make a valid conveyance of her estate, as to convey at the same time, on the same paper, and both in language suitable to pass the title of real estate.” 2 N. H. Rep. 527 .

Here the husband and wife join in the conveyance, but *63 neither uses any proper language to convey their interest. The husband conveys and warrants a fee-simple, when he had but a life-estate. His deed is effectual to convey all the interest he had, and nothing more. His wife released her right of dower only, when she had no such interest. As to that, her conveyance is simply inoperative. It would be against every principle of construction to presume a release of any different interest from that expressed. Their deed then gave to Flagg the husband’s life estate, and nothing more. Melvin v. Proprs. of Locks, &c., 16 Pick. 137 ; Raymond v. Holden, 2 Cush. 264 ; Payne v. Parker, 1 Fairf. 178; Powell v. Munson, 3 Mason, 348 ; Mayo v. Feaster, 2 Mc. C. Ch. 137; Purcell v. Goshorn, 17 Ohio, 105; Bank v. Rice, 4 How. U. S. 225; Foster v. Dennison, 9 Ham. 121; and see Lithgow v. Kavanah, 9 Mass. 164 ; Bruce v. Wood, 1 Met. 542 ; Luffkin v. Curtis, 13 Mass. 223 ; Catlin v. Ware, 9 Mass. 218 .

It was not necessary for the court to make any remark in relation to the covenants of warranty in the deed of Bryant, nor does it seem in any way called for. It was a matter entirely irrelevant to the issue to be tried, and had no bearing upon the suggestions which were made to the jury relative to the question of fraud, growing out of the seeming gross ignorance of the parties relative to the actual state of the title, and to the effect of the deed. It was not the purpose of the court to show that the conveyance did not include more than half the property, for that could in no way alter the matter, if the deed was fraudulently read, as the plaintiff alleged ; but it was to state the facts to enable the jury to decide whether the deed was so written by fraud or by mistake. The issue presented to the jury was, whether the deed was falsely and fraudulently read by the defendant, and its execution unduly obtained by means of that fraud. No other question was raised ; and the jury were instructed, that if the plaintiff had failed to make out this point, they should find their verdict for the defendant. It was supposed *64 the exception taken to this instruction might be founded upon the idea, that if the deed was executed through mistake of the parties as to the state of the title, and the legal effect of the conveyance, without any fraud, it might be held inoperative and void. In equity this might be so. A court of equity may either set-aside the deed, or correct the mistake in such a case. The remedy there is suitable and effectual to do justice to all parties. At law it is otherwise, and it cannot be regarded as desirable that courts of law should interfere with conveyances on this ground.

It seems, however, that the exception is taken upon the reason, that the plaintiff conceives he is entitled to a verdict for four acres of the demanded premises, which were not included in the defendant’s deed, and to which the defendant did not pretend to set up any title. There would be no foundation for this idea if the language of the declaration should receive the same construction as that of the deed. At the trial it probably did not occur to either of the parties that the result of the action might affect the title to that part of the land, and the attention of the jury was not drawn to this point, either by the court or by the counsel.

It is now insisted that a different rule is to be applied in construing the declaration, from that we have adopted in relation to the deed. The general description of the demanded premises is not to be limited, it is said, by the reference to the deeds for a particular description. The description is complete and perfect in itself, and it is immaterial whether this land or any part of it was conveyed to the plaintiff by Bryant, .Bean or Pinkham. The entire allegation may be regarded as mere surplusage, which may be struck out without in any way impairing the cause of action, and which it is therefore unnecessary to prove. There can bé no exception taken on account of variance, as to any such redundant allegations, whether the proof supports the statement or not.

The principle, adopted by the courts in relation to the *65 description of the demanded premises in real actions, is thus stated by Wilde, J., in Atwood v. Atwood, 22 Pick. 287 . “ In the description of the land, reference is had to a deed, and unless the description can be aided by that reference, it is not sufficiently definite and certain; and it is very clear that it cannot be thus aided. Such a reference would be good in a conveyance of the land, or in a demand of dower before action brought. But when lands are demanded, the description of them must be so certain that seizin may be delivered by the sheriff, without reference to any description of them dehors the writ. It-is not necessary in every ease to describe the land demanded by metes and bounds, but there must be a certain description in the writ itself, and no defect can be cured by a reference to any existing conveyance.” Stearns, R. A. 151; Bindover v. Sindercombe, 2 Ld. Ray. 1270 ; Miller v. Miller, 16 Pick. 215 ; Com. Dig. Pleader, 2. y. 2. The reference to a deed, which is not permitted to aid a defective description, cannot be permitted either to extend or restrict the effect of a description which is complete and perfect in itself. It is therefore entirely immaterial, and may be disregarded. Upon the original count, then, as there was no defence attempted as to the land not included in Flagg’s deed to Bean, the plaintiff was entitled to recover,' and the jury should have been so instructed.

During the trial, and when it appeared that the plaintiff’s title to a part of the premises was in fee, and to a part only a freehold estate, it was suggested that separate counts were necessary, and it was agreed that the plaintiff might so amend his writ, and the trial proceeded, as if it had been done. This suggestion was well founded. The rule is thus laid down in Stearns on Real Actions, 153. In writs of entry, the seizin of the demandant, or of him under or after whom he claims, must be correctly stated. If the demand-ant complains of a disseizin to himself or his ancestor, he must expressly allege a corresponding seizin. Thus where *66 he demands the inheritance upon his own seizin, he must allege that he was seized of the demanded premises, of the said messuage, or of the lands and tenements aforesaid, with the appurtenances, in his demesne as of fee, and where he claims only an estate for life, the averment should be, that he was seized in his demesne as of freehold. The same principle is laid down in Booth on Real Actions, 177, Fitzh. N. B. 443, and note, and Dyer, 101.

The amendments then being necessary, and the parties having agreed they should be made, they are to be considered as if made. If the new counts had been drawn, as they almost necessarily must have been, cutting the premises into separate parcels, it would have appeared that a part of the plaintiff’s claim was for lands in which Bean claimed no title, and it may fairly be presumed, he would have disclaimed; and thus the present question would have been avoided. As no change was made or asked in the pleadings, if the court would not have restricted the plaintiff in filing new counts to the land conveyed to Flagg, by Bryant, Bean and Pinkham, the case would have stood as it does on the original count. As to this point we cannot undertake to say what rule might have been adopted by the court of common pleas, in the exercise of their discretion; and must therefore hold it doubtful, at least, whether the amended counts would not have covered the whole twenty acres, in which case the verdict should have been for the demandant for four acres.

For this reason, we think the verdict must be set aside, and when the parties have amended their pleadings, there must be A new trial.