Lizzie Andreu et al., Appellants, vs. Mildred Watkins, Appellee, 26 Fla. 390

Raney, C. J. It is certain that the land intended to be conveyed by Miss Abbott to Mrs. Andreu by the deed of June 23d, 1882, was bounded on the west by Orange street; or, in other words, that the eastern line of Orange street, as that street was actually located by the survey which the map of the North City of St.

Augustine, filed in the office of the Clerk of the Circuit Court of St, Johns county on the 14th day of May, 1877, was intended to represent, was made the western boundary, and the land conveyed was that extending east from Orange street one hundred and fifty feet, and north from Mulberry street forty-seven feet, the land north and east being at the time of the conveyance the property of the grantor.

The meaning and effect of this deed was that wherever the eastern line of Orange street, as it was laid out, was, there also was the western boundary of the land conveyed, and wherever the northern line of Mulberry street w^s, there w^s the southern bound-r ary of the grant, and that the eastern boundary line was one hundred and fifty feet east of former, street, and the northern line forty-seven feet north of the latter street. These are the boundaries which, as a matter of law, are given by the deed. Abbott vs. Abbott, 51 Maine, 575, 581.

To apply this description, or identify the line described, or in other words, locate the boundaries, it is necessary to find the described lines of the two streets, as they were actually laid out, and measure the distances given in the deed. Where the boundaries of land described in any deed really arc, is always a question of fact; and parol- testimony is admissible to show where they are, or apply the description to its subject-matter. Abbott vs. Abbott, supra; Reamer vs. Nesmith, 34 Cal., 624; Turnbull vs. Schroeder, 29 Minn., 49.

The deed from Miss Abbott to Miss Watkins, the plaintiff, was executed about eleven months after the above conveyance, and makes the intersection of Mulberry and Water streets on the north side of the former street the southeast and initial point of the description of the ground, and the former street the southern boundary, the latter street for the distance of forty-seven feet the eastern boundary, and a line parallel with and forty-seven feet north of Mulberry street the northern boundary, and one parallel with Water street the western boundary.

It is true that it gives the distance along Mulberry street, and the length of the northern parallel line as one hundred and fifty-eight feet, but it also says that the land granted is bounded on the west by the “ lot of Andreu,” (Flagg vs. Thurston, 13 Pick., 145), and it makes reference to the same map to which the deed to Andreu refers. The proof is that only one map answering the designation of the two deeds is on file in the Clerk’s office in St.

Johns county; and if should be rem^rkqd of the map that the block of land out of which the above conveyances were made is not subdivided into lots, but is, according to the map, one solid piece measuring 300 feet east and west, by 340 feet north and south, and bounded, east, nouth and west by the streets mentioned above, and north by Locust street. These are the conveyances from the common grantor, existing at the time of execution of the deed of April 5th, 1884, from Mrs. Andreu and her husband to Miss Watkins, upon which deed the latter relies for a recovery of the land sued for.

The question, of which a correct answer, when made, will afford a solution of this controversy, is: What land docs this deed convey ? By its terms it conveys “ a strip of land being the east end or portion of a certain lot deeded to party of the first part by Lucy B. Abbott, by deed dated June 23d, A. D. 1882,” (stating, as supra, the book and page in and upon which it is recorded, and showing it to be the deed to Mrs. Andreu), “the west half having been sold to Dora Benet.

The piece now intended to be conveyed by this deed measures as follows : Beginning at the south-east corner of said lot, which is now the dividing line between this lot and the lot of Mildred Watkins, thence northerly forty-seven feet to the north-east corner of said lot, thence west twenty feet, thence south and parallel with the east side forty-seven fe'et to Mulberry street, thence eastwardly along Mulberry street twenty feet to the place of beginning.” There is no ambiguity in this description. Its purpose is to convey the east end of the lot conveyed by Miss Abbott to Mrs.

Andreu, and it makes the south-east and northeast corners of the land so conveyed, the north-and-southeast corners of the piece intended to be conveyed by this deed to Miss Watkins, The eastern boundary of the lof conveyed to Mrs. Andreu is made the eastern boundary of the piece intended to be conveyed by her and her husband to Miss Watkins, and no other piece of land than one whose eastern boundary is located one hundred and fifty feet east of the eastern line of Orange street will answer the calls of this deed. No other eastern boundary will effectuate a conveyance of the eastern end of the lot.

This deed in giving the measurement as “ beginning at the south-east corner ” of the lot conveyed- to Mrs.

Andreu, and stating that such corner “ is now the dividing line between ” such lot and the lot of Miss Watkins, and following with the words, “ thence northerly forty-seven feet to the north-east corner of said lot,” means that the south-east corner on Mulberry street, one hundred and fifty feet east of Orange street, wás the commencement of the dividing line between the Andreu and the Watkins lot, and that the line run northerly to the north-east corner, was the dividing line, and that this line should be the eastern boundary of the piece of land conveyed.

The intention of the parties, as shown by this deed, was that it should convey the east end piece of the lot, the same to measure forty-seven feet north and south, by twenty feet east and west, and be bounded on the south by Mulberry street, and having its south-east corner one hundred and fifty feet east of Orange street, and to locate the boundaries of the land it is necessary to find the eastern boundary of Orange street as it had been located by the survey represented by said map, and from these locate the initial point of description one hundred and fifty feet east, on the north side of Mulberry street, and trace the boundaries according to the directions and distances given in the deed.

There can be no doubt, from the testimony in this case, that the eastern boundary of Orange street was^ at the time Miss Abbott conveyed to Mrs. Andreu, and when Andreu built the fences, at least five feet east of where he put the western fence, and the only conclusion that can be drawn, particularly in view of Miss Abbott’s testimony, is that he located it where he did, through a mistake as to where the eastern line of the street was, and this mistake naturally resulted in and accounts for his putting the eastern fence five feet west of where, by the calls of his deed, it should have been.

Admitting, as a matter of fact, that both the Andreus and Miss Watkins, when the deed from the former to the latter was made, understood the eastern fence to be on the eastern line of the lot conveyed to Mrs. Andreu by Miss Abbott, this misunderstanding cannot change the meaning and effect of the deed to Miss Watkins, which deed shows that it was the intent to convey the eastern twenty feet off the land actually conveyed to Mrs. Andreu by the deed of June 23d, 1882. Whether or not the western fence had been moved in before the conveyance to Miss Watkins, is not so certain. According to this deed Mrs.

Andreu owned at least five feet east of her fence, and the record of her deed was constructive notice to Miss Watkins, even if Miss Watkins’ deed from the common grantor did not put her on notice by its reference to Mrs. Andreu’s lot, and Mrs. Andreu could have recovered against Miss Watkins, even assuming the latter’s possession to have been adverse, as the period of the statutory bar had not run. There can be no doubt but that Miss Watkins’ fence is on the line of Water street as it was laid out by the original survey.

Miss Abbott testifies to the finding of the old stake at the south-east corner, and the evidence is otherwise entirely satisfactory on the point. It is true that Mickler’s measurement of the distance from Water street to Orange street, as the fences now stand, was three -hundred and two feet, and Colee’s survey makes it three hundred and three feet, whereas the above plan of the original survey states it to be only three hundred feet. These discrepancies can be of no benefit to the plaintiff, nor any harm to the defendant, in their controversy as it appears now, for it is not pretended that Mrs.

Andreu claims further east than one hundred and thirty feet from the fence, or east line of Orange street; or, in other words, that she denies Miss Watkins’ right to the east twenty feet of the one hundred and fifty feet of land conveyed to her by the original 'deed from Miss Abbott. Assuming that the east line of Orange and the West line of Water street were as actually laid out on the ground by the surveyor more than three hundred feet apart, the mistake as to their distance from each other would not affect the actual location as boundaries. Turnbull vs. Schroeder, 29 Minn., 49.

The description of the street in the deed from Miss Abbott to Mrs. Andreu would nevertheless mean its east line as it was actually run out. Whether or not the absence of any other proof than that as to finding the old stake on Water street, the eastern line of Orange street would not be assumed to be three hundred feet west of that stake, is immaterial to this case. The contention of Miss Watkins that the fence, which was five feet west of the true line, or only one hundred and forty-five feet east of Orange street, is the eastern' boundary of the land conveyed, is not supported by the deed.

It is not mentioned in the deed as the eastern boundary. If it had been made the eastern boundary by proper words, then of course the five feet east of it would not have passed by the deed, but as it was not the fact that either or both of the parties to the deed may have understood it to be, will not include it in the grant. A deed which fails to describe any part of the land intended to be conveyed, does not convey the part omitted from the description. The parol evidence as to where the fence stood was inadmissible to prove that any other than the east true line of the lot conveyed to Mrs.

Andreu, was the east line to the piece conveyed by her and her husband to Miss Watkins ; and no other land passed by the latter deed than a piece having the same eastern boundary and extending west twenty feet, and otherwise answering the calls of the deed, and hence the land sued for is not included in that deed and cannot be recovered under it. Cornell vs. Jackson, 9 Met., 150; Northrop vs. Sumney, 27 Barb., 196; Tymason vs. Bates, 14 Wend., 671; Crosby vs. Parker, 4 Mass., 110; Armstrong vs. DuBois, 90 N. Y., 95; Cornell vs. Todd, 2 Denio, 130; Clark vs. Baird, 9 N. Y., 183, 199, et seq.; Drew vs. Swift, 46 N.

Y., 204; Linscott vs. Fernald, 5 Greenleaf, 496; Bell vs. Morse, 6 N. H., 205; VanWyck vs. Wright, 18 Wend., 157;. Clark vs. Wethey, 19 Wend., 320; S. & W. on Trial of Titles to Land, sec. 798 a. There is in the authorities presented in behalf of the appellee nothing in conflict with the views given or authorities we have cited, The cases relied upon to sustain the introduction of parol evidence to show that the fence was the dividing line referred to by the. deed, are such as present a latent ambiguity in the description as in Abbott vs, Abbott, supra, and Hedge vs.

Sims, 29 Ind., 574, or where stakes or other monuments were held to control distances as in Turnbull vs. Schroeder, supra, or where as in Raemer vs. Nesmith, supra, Waterman vs. Johnson, 13 Pick., 371, and Claremont vs. Carlton, 2 N. H. 369, parol testimony was admitted to explain particular expressions which did pot of themselves convey a definite meaning. Where one deed refers to another or to a map or plan of' a survey for a description, the deed, map or plan referred to becomes as much a part of the instrument making the reference as if actually copied into it. Chaffin vs. Chaffin, 4 Gray, 280; Allen vs.

Bates, 6 Pick., 460; Foss vs. Crisp, 20 Pick., 121; Vance vs. Fore, 26 Cal., 436; 3 Washburne’s Real Property, 4th Edition, 327, 328, 430; Gould on Waters, Sec. 194. As the plaintiff has nbt been in possession of the lánd sued forfor the period and under the circumstances necessary to create in her á statutory title by adverse possession, nor in fact in possession of it at any time in so fat ás this record discloses ; and as such land is not covered by bet deed from Mrs. Andreu, and parol testimony is not admissible for the purpose for which it is attempted to be used, a new trial should be granted.

It is unnecessary to discuss the several assignments'of error further than they are involved in what has been said above. The judgment is reversed and the case remanded for a new trial.