Campe v. Renandine

• Decision Date: 28 February 1887
• Court: Mississippi Supreme Court
• Parties: AUGUSTE CAMPE v. MARGUERITE RENANDINE

1 So. 498

64 Miss. 441

AUGUSTE CAMPE v. MARGUERITE RENANDINE

Supreme Court of Mississippi

February 28, 1887

APPEAL from the Circuit Court of Hancock County, HON. S. H. TERRAL Judge.

Marguerite Renandine brought this action of ejectment against Auguste Campe. The plaintiff in her declaration demands possession of a certain tract of land described as follows: "Beginning at a stake or post on the beach, at the southeast corner of Sebastian Guardia's land, thence running on a course north forty-five degrees west to the N., O. M. and T. R. R thence on a course south on the line of the said railroad land, about one hundred and eighty (180) feet more or less thence on a course south forty-five degrees east to the western bank of Bay St. Louis, and thence along the bank of Bay St. Louis one hundred and eighty (180) feet more or less to the place of beginning, and bounded on the north by the land of Sebastian Guardia, on the west by the land of the N O., M. and T. R. R., on the south by the lands of the present vendor, Auguste Campe, and on the east by the Bay St. Louis, it being the lot of land lying south of Sebastian Guardia's land, and being same property which was acquired by said Campe by purchase from B. L. Twitchell and wife on November 30, 1883."

The defendant pleaded "that he is not guilty of unlawfully withholding the possession of the following part of the land described in the plaintiff's declaration, viz.: a piece of said land fronting on the Bay of St. Louis, which is the eastern boundary of said lot of land, and which runs back on a course north forty-five degrees west along the southern boundary line of land described in plaintiff's declaration, four hundred feet to a stake on the Sebastian Guardia back line, and having a front of six feet on the Bay of St. Louis, and said lot of land is bounded on the north by a fence dividing the land of plaintiff and the lot of land of defendant." Defendant defends his title and possession to this six-foot strip, which he asserts is described in plaintiff's declaration and claimed by plaintiff.

The character and effect of the evidence adduced by the plaintiff are stated in the opinion of the court.

On the trial defendant offered evidence which tended to show that defendant was the owner of two adjoining lots, one of which he purchased from one Twitchell; that after purchasing the lot from Twitchell he removed the fence between the two lots about six feet on the Twitchell lot; that he afterward sold the Twitchell lot to plaintiff, who came upon the land, and had the lot pointed out to her as bounded by the new fence; that defendant positively refused to sell the lot as it formerly stood, but only sold it from fence to fence; that after the deed was made defendant refused to sign and acknowledge it upon the ground that he did not know whether the measure between the fences was one hundred and eighty feet, and that he afterward consented to acknowledge the deed to plaintiff in evidence because the agent of plaintiff to whom defendant sold said that he only wanted the deed to take back to plaintiff, and that if Campe would sign it, he, the agent, Forster, would have a survey and new deed made on his return. The court excluded all this evidence, and instructed the jury to find for the plaintiff. The defendant appealed.

Judgment affirmed.

Posey & Bowers, for the appellant.

1. This was a mere dispute as to boundary--the dividing line between adjoining lots.

Parol evidence is always admissible to prove the question of boundary. See McCaleb v. Pradat, 3 Cush. 257; May v. Baskin, 12 S. & M. 428; Surgett v. Little, 5 S. & M. 329; Carmichael v. Foley, 1 How. 591; Hazlip v. Noland, 6 S. & M. 294; Whitworth v. Harris, 40 Miss. 483.

2. Numerous decisions have settled it beyond controversy that the description of land in deeds as being so many acres, or so many feet "more or less," does not bind the grantor or the grantee to any particular quantity, but that they mean only an approximation to the quantity so described. In such case the vendor and vendee take mutual risks as to the quantity. If it turns out to be "more" than the quantity described the vendee gets the benefit of it, and if "less" he must bear the loss.

The authorities upon this point are too numerous for citation, and we will cite only a few. See Philips v. Tarfley, 2 Cushman 597; 1 Parsons on Contracts, 7th ed., 493; Noble v. Googins, 99 Mass. 231; 4 Kent Com. (12th ed.) 466-67; Noble v. Googins, 99 Mass. 231, and numerous cases therein cited; also Harrison v. Talbot, 2 Dana (Ky.) 258, and cases cited; 5 Cent. Law Journal 22, 23, and cases cited; 4 Cent. Law Journal 310 and 332. We could easily cite dozens more of similar decisions, but the question is settled.

The appellee claims that she is entitled to "one hundred and eighty feet (front) more or less," and that she got six feet less, being only one-thirtieth less, a fraction over three per cent. less than she claims; so she gets one hundred and seventy-four feet when she claims that she is entitled to one hundred and eighty feet.

3. The court having excluded all the evidence of defendant, there was no evidence at all as to the locus in quo, the land in controversy, except the deeds describing it. There was absolutely no evidence that the deed of defendant to plaintiff embraced this disputed boundary, a strip of six feet, no evidence that pl...