Israel Crafts & another vs. Elias Hibbard & another, 4 Met. 438

Dewet, J. To entitle the plaintiffs to maintain their action for a breach of the covenant of warranty contained in the deed of the defendants, they must show affirmatively a superior outstanding title in a third person, who has entered upon the land, or some portion of it, under such title, and ousted the plaintiffs. 4 Mass. 410, 442. This position they have endeavored to maintain by the evidence which they have introduced of title in Seth Crafts in a pa"t of the premises conveyed, and an entry by him in 1834.

The defendants deny any such title to the premises in Seth Crafts, as is alleged, and it is upon this question that I shall proceed to state the opinion of the court. It is agreed that the said Seth Crafts and John Crafts were, in the year 1825, tenants in common of a parcel of land containing about 47 acres, and embracing, as a part thereof, the parcel now in controversy.

On the 14th of April 1827, said John Crafts having deceased, certain conveyances were made between his heirs and Seth Crafts, by which the northerly part of the land formerly owned in common was conveyed to said Seth, and the southerly part to the heirs of said John ; and the precise point of controversy is as to the construction of the deed from Seth Crafts to said heirs, and whether it conveyed the land now in question.

The language of this deed is thus : “A certain tract of land, lying in Whately, on Eastern Mountain, so called, and is bounded as follows ; east on a town way, north on land this day deeded to Seth Crafts by the heirs of John Crafts, west on Joel Munson’s land, south on land this day set off to Lydia Crafts and Eleanor Russell.” It is quite obvious that the location of the premises, intended to be conveyed by this deed, is to be ascertained by reference to extrinsic evidence.

As they are described on all sides by reference to lands of other persons, we must go out of the deed to ascertain precisely where the boundaries are. Upon the face of the deed there is no such ambiguity as calls for any legal construction ; and although it refers to other title, yet for aught that appears upon the deed itself, its references, when resorted :o, as they necessarily must be, may furnish a clear and well defined boundary in every part. And as to all the boundaries except that on the north, such, it is conceded, has been the practical effect.

But, upon recurring to the description, by way of reference, for the northern boundary of the land conveyed, it seems that the deed referred to is itself ambiguous, having three well defined sides, but having its southerly boundary thus ; “ south on land this day deeded to John Crafts’s heirs by Seth Crafts.” Upon this state of facts as to the northern boundary of the land conveyed by Seth Crafts to the heirs of John Crafts, it is suggested by the counsel for the plaintiffs, that this conveyance must he held void for uncertainty. But we think that this position cannot be maintained.

A deed is not to be held void for uncertainty, if by any reasonable construction it can be made-available. By the description in the two deeds, three of the four sides in each parcel are well defined, and the only doubtful line is that which divides the two parcels, running east and west.

Taken together, the two deeds embrace a tract of land having certain and well defined boundaries on all sides ; and if there were no extrinsic evidence to aid in fixing the location of the disputed line, or if such evidence were inadmissible, the law would furnish a rule of construction for establishbg the dividing line between the adjacent owners. The next inquiry is, whether the parol evidence, offered in the present case by the defendants, tending to establish the true location of the line in controversy, was admissible.

It is well settled that parol evidence cannot be introduced to contradict or control the language of a deed ; but it is equally well settled, that latent ambiguities may be explained by such evidence. Facts existing- at the time of the conveyance, and prior thereto, may be proved by parol evidence, with a view of establishing a particular line as the one contemplated by the parties, when such line is left, by the term of the deeds, ambiguous and uncertain. This doctrine, the reasons of it, and the extent to which it is competent to resort to such parol testimony, are fully stated in' the case of Waterman v.

Johnson, 13 Pick. 266. In the cases of Frost v. Spaulding, 19 Pick. 445, and Clark v. Munyan, 22 Pick. 410, evidence of the acts of the parties soon after the making of the conveyance were held admissible in aid of the construction to be given to a boundary which was ambiguous. The same rule was adopted in Owen v. Bartholomew, 9 Pick. 520. It was perhaps more broadly and distinctly stated in the recent case of Stone v.

Clark, 1 Met. 380, in which it was held “ that when the construction of a deed is doubtful, great weight is to be given to the construction put upon it by the parties, especially in doubtful questions of boundaries.” The principles recognized in the cases above cited would seem fully to warrant the admission of extrinsic evidence of the actual state of things, as to the monuments existing at the date of the deed, indicating the southern line of the Seth Crafts’s lot, and any acts of the parties, subsequent to the execution of the deed, by which they may have given a practical construction to the same.

In looking at the evidence offered for this purpose, it seems to us to have a strong bearing, and to be quite sufficient to satisfy us as to the intent of the parties to this conveyance.

It appears from the evidence reported in the case, that at the time of executing the deed of Seth Crafts, there was a fence near the centre of the lot, and running across it; that upon the execution of the deeds between Seth Crafts and the heirs of John Crafts, the parties thereto, and those claiming under them, went into immediate occupation, and continued this occupation until the year 1834, when this controversy arose ; each party occupying up to the line of the fence, and treating the fence as the division line on the north, separating the land of Seth Crafts from that of John Crafts’s heirs.

This evidence of the existence of the fence and of the acts of the parties shows very clearly how they understood the conveyance in reference to the northern line of the land of John Crafts’s heirs. The construction thus put upon this deed, by the parties thereto, may properly be taken to be the true construction, unless it be contradictory to the language of the deed itself; and we do not perceive any sufficient ground for asserting that such contradiction exists.

In coming to this result, it may be proper to remark, that we have not been influenced by the evidence offered by the defendants as to the original division made between Seth Crafts and John Crafts, nor the division among the heirs of John Crafts.

It is urged, .however, that if parol evidence be admissible at all, to give a construction to this deed, it would authorize the admission of the testimony offered by the plaintiffs, that in making the original survey and erecting the fence, in 1825, preparatory to a proposed division, it was the intention of the parties to divide the entire lot into two equal parts, and that through some mistake in the admeasurement, it was not thus equally divided, but that the northerly part was somewhat short in the quantity that should have been assigned to it.

We think this evidence is not of such character as renders it competent to control the testimony relied upon by the defendants to give a construction to the deed of Seth Crafts. Nor do we think that the reference to the quantity of land contained .in the premises, conveyed by John Crafts’s heirs to Seth Crafts, creates any such repugnance of description to that which results from establishing the existing fence as the true line, as should affect the view we have taken of the case.

Thé part of the description referred to is as follows, viz. after reciting the boundaries on the adjacent lots, it then adds, “ to contain twenty-four acres, more or less.” The words “ more or less,” here used, clearly import that no precise quantity of land was assumed to be conveyed by this deed. It was strongly urged by the counsel for the plaintiffs, that the facts show a case of patent ambiguity, taking the two deeds together, and that this necessarily must exclude all the proposed evidence, as inadmissible to aid in the construction. This view of the case has not, however, been sanctioned by the court.

Some reliance was also placed by the plaintiffs’ counsel upon the decision of this court, in the case of Long v. Merrill, 24 Pick. 157. It is true that in that case the evidence offered was not allowed to control in the construction of the deed ; but, as it seems to us, it was presented under different circumstances and was of a character much less decisive than the evidence offered in the present case. Without impugning the authority of that case, we have been brought to a different result, and have here given force and effect to the evidence offered.

In the opinion of the court, the present is a case where the language of the deed is ambiguous, and where evidence of existing monuments, not referred to in the deed, as well as the practical construction given by the acts of the parties, is properly admissible to aid in determining the true boundary line ; and in giving proper effect to this evidence, we think that the defence is well maintained upon the question of boundary.

Without expressing any opinion upon the other ground of defence, presenting the question whether the covenant was for-a certain and definite quantity of land by admeasurement -— for the reasons stated upon the question we have had under consideration, the court are of opinion that this action cannot be maintained. Plaintiffs nonsuit.