Paul Thorndike vs. Abraham Richards, 13 Me. 430

The opinion of the Court was drawn up and delivered at a subsequent term, by Weston C. J.— The validity of the deed by the Twenty Associates, by their clerk, approved by their standing committee, of the fourteenth of September, 1790, to William Molineaux, was before this Court, in the case of Thorndike v. Barrett, 3 Greenl. 380. It was there contended, that there was no vote of the propriety, conveying the land to Molineaux, and that if they authorised any person or persons, to sell and convey their lands for them, that power was to be exercised, by making a deed, conforming to the settled principles of law.

But it was holden by the Court, that under the power which had been given to the proprietors of lands in common, to order, manage, improve, divide and dispose of their lands, in such way and manner, as shall be concluded and agreed upon, by the major part of the proprietors present, voting respectively according to their interests, the deed might be sustained in virtue of the vote of the propriety of 1768.

And having been made, executed, and sanctioned, in the manner and form prescribed by a vote of the proprietors it was holden by the Court, that they never could be permitted to deny, that the title to the lands, described in the deed, passed to the grantee.

The late Chief Justice of this Court, in giving the opinion pronounced by him in that case, further states, that the deed under consideration “ has several peculiar characteristics, which distinguish it from all those, with which it has been compared; and not deeming the decisions in those cases as necessarily applicable to this, we feel authorized, as well as disposed, to pronounce the deed, under all the circumstances attending it, as a conveyance of the land therein described.” We are now called upon, to determine the limit and extent of the land, conveyed by that deed.

It is preceded by a long recital of several votes of the propriety, and of their standing committee, upon which the authority of the clerk to make the deed is based.

Then follows in form the deed itself, made by him in his official capacity, by which there is conveyed to the grantee, “ all that tract or parcel of land, called and known by the name of Pitts or Beauchamp Neele, lying and being in the township of Camden, and County of Hancock, and Commonwealth of Massachusetts, butted and bounded as follows, viz. north-west on land of Abraham Ogier and land of Robert Thorndike, containing fifty acres, and a pond, south-west on Goose Harbour, south-east and north-east on the Ocean, containing five hundred acres more or less.” These bounds, thus definitely pointed out, which were well known, and have been ascertained, exclude the land in controversy.

But it is urged, that although not within the particular boundaries given, it is a part of Beauchamp Neck, and therefore passes under that general term, which it is said must prevail over the special description. The land as bounded, was not the less known and called by the name of Beauchamp Neck, because that Neck might also embrace a few acres, not within the boun-darles given.- The whole description, fairly understood, conveys all tbe tract of land, called Beauchamp Neele, which lies within those boundaries.

Looking at the deed, without reference to the recitals, we perceive no conflict or incongruity in the description. The limits prescribed, are plain, intelligible and well known. They cannot be misunderstood. To depart from them, would be to pervert the manifest intention of the parties. Beauchamp Neck, unaccompanied by any terms of qualification or restriction, would doubtless embrace all the land, known by that name. From the recitals it appears, that the propriety authorized the sale of the laud, using that term ; and that the standing committee had agreed to sell all the unappropriated land on Beauchamp Neck.

But the recitals, from which the authority to convey is deduced, and which set forth the progress and close of the negotiation for the sale, are only a

preamble to the conveyance, which followed afterwards in due form, and where we are to look for the operative words. The variance arises only from the omission of the small triangular piece of land now in dispute, of about five acres, detached and separated from the other land, by the intervention of the pond, and which being omitted, would enable them to make the pond one of the boundaries.

It is however insisted, that the clerk had no authority to depart, in any degree, from the previous votes ; but he was under the direction of the standing committee, to whom the business was confided, and they expressly, and under their hands, approved of the deed dravm by him. It was accepted also by the grantee, who must have understood that he was restricted to the very precise and exact limits, set forth in the deed. And we are very clearly of opinion, that the demanded premises, not being within those limits, the demandant has failed in his title.

And this is the conclusion, to which we feel constrained to come, if these premises are to be taken and regarded as a part of Beau-champ Neck. Whether therefore, the tenant is, or is not estop-ped to deny that fact, it is not necessary to decide. Demandant nonsuit.