J. H. Woodman vs. Charles Lane, 7 N.H. 241

Richardson, C. J., delivered the opinion of the court. The, first question to be decided in this case, is, whether the deed of mortgage conveyed to the demandant the premises he claims to recover in this suit. The deed purports to convey to the demandant the homestead farm, which is stated to be the land conveyed to the grantor by three deeds, which are particularly described : and the land described in the three deeds is stated to be all in lot No. 24 ; a reference is made to the three deeds for a particular description of it, and the same is declared to be the homestead farm.

It is rather difficult to conceive how this description can be construed to embrace the demanded premises, if the apparent intent of the parties to the deed is to govern in the construction. The Whittier deeds are so minutely described, the dates, the quantity of land they convey, the books and pages where they are recorded, it is manifest they were present when this conveyance ivas made.

And if this de-mandant exercised ordinary care in the business, he did not take the conveyance without a careful examination of those deeds ; and having taken a deed which expressly declares that the land described in those deeds constitutes the homestead, he would seem to have precluded himself from saying that the homestead embraced any thing more, or even that the land demanded in this writ was omitted by mistake. The term “ homestead” by no means necessarily implies the four parcels of land which the grantor owned, although they lay and were occupied together. A homestead is the place of the house.

Coke says, “ Stethe, or sted, betoken-eth properly a bank of a river, and many times a place.” Co. Lit. 4 b. Homestead, then, means nothing more Phan home place. It appears, from what is stated in this case, that the house stands on the lands bought of the Whittiers ; and it is much more probable that those lands were known and considered as the home place, than that the demanded premises were omitted in the particular description by mistake. In the case of Barnard vs. Martin, 5 N. H. R., 536. the very point we are now considering was examined and settled.

It was there decided that the terms, “ homestead farm.” might be restricted by a particular description. But it is said that the authorities do not sustain that decision : and as that is by no means so clear a case as the one we have under consideration, we shall reexamine that case.

It is contended, that the terms, homestead farm, so clearly and certainly indicate what was intended to be conveyed, that they cannot be restricted by a particular description : and that the general description is to be considered as a distinct and separate sentence from the particular description : and that the latter is therefore to be construed as explanatory and not as restrictive. And it is said these propositions are ■sustainable upon authority. We shall now examine the cases cited, - '• • • In the-.case,- Conolly vs.

Vernon, 5 East, 51, one having customary tenements, compounded and uncompounded, surrendered to the use of his. will, .all and singular, the lands and tenements, ,&c. whatsoever in the manor which he held of the lord, .by copy of court roll,, in whose tenure or occupation soever the same were, béing of the yearly rent of £4 10s. 8id., and compounded\for.. The question was, whether the words, and compounded for, restrained the operation of the surrender.

It was decided that when there is a grant of a particular thing once sufficiently ascertained, the addition of an allegation, mistaken or false, will not frustrate the grant; but where a grant is in general terms, then the addition of a . particular circumstance, will operate by way of restriction, and that in that case the words, being of the yearly rent, &c., and compounded for, were part of the general sentence; that, there was no division in.the words or sense, but the whole was one entire sentence, and that one part might well restrain the . other : page 81.

That case has no tendency to establish either of the propositions laid down by the counsel in this case. No question as to the meaning of the term, homestead farm, arose, or was considered.. ' On the contrary, it is a direct authority to shodt that the general and particular description in the case of Barnard vs, Martin were one entire sentence, and that one .might, restrain the other. . . - . In Radford vs. Southern, 1 M. & S. 299, there was the following devise in the will of R. S. “ I give and devise all that m.y farm, lands and hereditaments called Tregües Farm, within the parish of.

Darley, in the county of Derby, now-in the occupation of A., Clay." It appeared that part of the Tregües farm was not in the occupation of A. Olay. The question was, whether that part passed by the devise, The court rented the decision entirely on the force of the word all in the devise, which they considered as indicating clearly an intention to pass all that was called Trogues farm ; and wdrich was not, therefore, in their opinion, to be limited by the defective description of the occupation. They therefore held that all passed.

It is very manifest that the decision in that case, resting as it does entirely upon the force of the word all, has no bearing upon the question which arose in Barnard vs. Martin, or which arises in the case now before us. In Lodge's lessee vs.

Lee, 6 Cranch, 237, there was a grant to Thomas Lee of “ all that tract, or upper island of ‘land called Eden, in Prince George county, beginning at a ‘bounded maple, &c., and running thence N. 60° W. sixty ‘ perches,” See. (giving the course and distance of every line to the beginning tree.) The lines described in the grant did not embrace the whole island ; but it was decided that the whole island passed. The reasons of the decision are not stated, but they are very apparent.

An island has certain natural boundaries, which cannot be mistaken, and which, when the whole island is granted, cannot be controlled by length of chain and point of compass, which are much less certain. In Child vs. Picket, 4 Green. 471, the case was this : Brooks being seized of three tracts of land in Portland, which had been conveyed to him by J.

W. by deed dated April 9, 1807, and which were particularly described in that deed, on the 24th December, 1810, made a deed, by which he conveyed to James Wylie, Junior, “three parcels, or lots of land, situated in Portland, the first parcel bounded,” &c. (here he described the first parcel, as it was described in J. Wes deed to him) “ being the same which was conveyed to me by J.

W. by deed dated April 9, 1807, now on record.” It was very correctly decided, that the particular description of the first parcel could not, under the circumstances, restrict the conveyance to that parcel, but that all the parcels must be considered as intended to be conveyed.

In Willard vs, Moulton, 4 Green, 14, Abner Hill owning a farm,'one-third undivided os' which hod been conveyed to him by Joseph Hill, in a', deed dated-May 14, 1811, and • the remaining two thircls'by a -deed dated" March 26, 1813, on 27th November,. .1821, conveyed to Moulton certain" parcels of land.; “also, one other parcel, &c,, particularly described ‘ and mentioned in a deed from Joseph Hill to me, dated May ‘ 14,1811. paid parcels of land being ail the farm on which ‘ I now live.” The question was, whether this .deed passed to Moulton one undivided third, or the’whole of the last parcel mentioned in it.

The' court were of opinion that the. reference to. the deed of May 14, 1.811, was for the purpose of describing the land, and not the quantity of estate intended to be conveyed.; ancl as he had declared what he conveyed to be all the farm on which he lived, the whole of the parcel in dispute passed. . . In Keith vs. Reynolds, 3 Green. 393, B.

N, conveyed by deed to the plaintiff “ a certain tract of land, or farm, lying 1 in Winslow, &c., which was granted by the proprietors, <fce. ‘ to Ezekiel Pattee : Said farm is bounded as follows(Here the farm was described by courses and distances, which did not include .the whole, but left out a small, triangular piece.) The question was, whether the whole form granted! to Pattee passed by this deed. - The court hold that the land intended to be conveyed was designated by the reference to the grant to’Pattee. with sufficient certainty to control the courses and distances, and that the whole farm passed.

In Cate vs. Thayer, 3 Greenleaf 71, it was decided only that where land is described by certain known monuments, and. also by the courses of the- lines, the monuments are to prevail against the courses, when they come in conflict. In Jackson vs. Barringer, 15 John. 471, R. Livingston leased to Barringer “ the farm on which J. J. Decker now Hives, lying east of the farm of J. Miller, west of the farm ‘ of A- .Bartie and J. Decker, south of the farm of T. Becker, ‘ to contain eighty acres in'one piece.” . The farm on which J. J.

Decker lived at the time the Rase was made, contained one hundred and forty-nine. acres ; and the .question was, whether the whole farm passed ? The court decided that the description of the premises intended to be conveyed as the farm an which J. J. Decker lived, was certain enough to control the quantity stated, and that the whole farm passed. The points decided in Worthington vs. Hylyer. 4 Mass.

R. 196, were that 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 Ire 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. ' . . - - The case of Jackson, vs.

Clark, 7 John. 217; Bozoun's case, 4 Coke’s R. 34 : the law stated in 3 Pide. 11. 27S, and 2 Burrows, 1093, and'in Moore 45, are all to the. same effect as the case of Worthington vs. llylyer. And the case of Swyft vs. Eyres, Cro. Charles, 546, in truth amounts to nothing more.

In that case, the sub-chanter and vicars choral of Litchfield granted to Humphrey Peto “all that their glebe lands lying in Chesterton, viz. 78 ‘ acres of land, and also the demesnes of the said 78 acres, “with all profits, commodities, tythes personal and predial, ‘ whatsoever they be, or. -shall fortune to. he, belonging to ‘ said sub-chanter and vicars, as parson and proprietaries of ‘the parish church of Chesterton aforesaid, as the tyflies of ‘pig, goose, &c., and all other tythes whatsoever ;■ and also ‘ the tythes of the said 78 acres: all which lately were m ‘the occupation of Margaret Peto/’ .

It was found that the tythes of these lands never were in the tenure of Margaret Peto, But some lands and tythes were in. the tenure of Margaret Peto. The -question was, whether any tythes not in the tenure of Margaret Peto passed by that, grant ?

It was decided, that, the tythes passed, although not in her tenure : and it was said that “ where the clause is not in ‘ one entire sentence, but distinct and disjoined from the ‘ other, as here it is. there cannot be any restriction ; also ‘ this being in the case of a common person addition of a ‘false thing, viz. false possession, shall never hurt the grant: ‘ for the addition of a falsity shall never hurt, where there ‘ is any manner of certainty before.!! The amount of this seems to be, that when what is intended to be granted appears with any manner of certainty, the addition of a falsity does not hurt.

The case of Drinkwater vs. Sawyer, 7 Greenleaf, 366, -only decides that where the land intended to be granted is once clearly ascertained by the description, the addition of a mistaken circumstance will not affect the grant. We have now examined all the most material cases which have been cited by counsel to show that the decision in Barnard vs. Martin cannot be sustained upon authority. Few cases have been now cited which were not examined when we had that case under consideration.

But it was supposed that the cases mentioned in the opinion of the court in that case were all that had any bearing upon the question to be settled. And after a most careful examination of all the cases which have been cited in this, we are of opinion that there is no one which, when rightly understood, is at all in conflict with the decision in that case ; and that very few of them have any bearing upon the question. We are, therefore, of opinion that the land sought to be recovered in this case did not pass to the demandant by the deed of mortgage.

The next question is, whether the tenant is estopped by the judgment to claim the demanded premises ? This question is easily settled.

If in that suit the only description of the premises demanded had been, “ the whole 1 of the farm which was on the 19th February, 1827, the * homestead farm of the said Robert, however butted, bound-1 ed or described”, the deed on which the demandant counted in that case would have shown conclusively that the land demanded in this case was not the land demanded in that.* But there was a further description in that writ, which shows clearly that this land was not demanded in that suit. Verdict set aside, and a new trial granted.