Doyle v. Mellen

• Decision Date: 19 March 1887
• Citation: 8 A. 709,15 R.I. 523
• Parties: DOYLE and Wife v. MELLEN.
• Court: Rhode Island Supreme Court

8 A. 709

15 R.I. 523

DOYLE and Wife

v. MELLEN.

Supreme Court of Rhode Island.

March 19, 1887.

Defendant's petition for a new trial.

Irving Champlin, for plaintiffs.

Patrick J. McCarthy, for defendant.

STINESS, J. David G. Hall, in September, 1869, owned a farm in Warwick, called the "Battey Farm," containing about 100 acres. This included a triangular lot of two or three acres at the south-west corner of the farm, which had previously been deeded to the owner of the Wightman farm, adjoining, by heirs of Russell Battey, although they held no legal title. The purchaser, however, took possession of the lot, and fenced it off, but the whole had come into Hall's possession, at this time, as the owner of both farms. He then gave a mortgage of the Battey farm to Sarah T. Battey, describing it as such, and by boundaries which included the triangular lot in question; by measurement, as containing "97 acres, more or less," and also by reference to a previous deed to him, reciting the same boundaries, but much smaller measurement. In May, 1871, Hall sold the Wightman farm and this triangular lot to the defendant, making no mention of the mortgage then outstanding on the Battey farm, and under this deed the defendant entered into possession. We make no other reference to the deeds from the Batteys, because they had no title to convey; and whether they had or not is immaterial, since Hall was the sole owner of both farms when the mortgage was given.

In May, 1884, the Battey farm was sold under the mortgage to Walter M Greene, who, in December, 1885, sold to George E. Aldrich, and Aldrich sold to Mrs. Doyle, who now sues for possession. At the trial the court directed a verdict for the plaintiffs, and the defendant petitions for a new trial. He contended that there was an uncertainty and inconsistency in the description which entitled the jury to find that the triangular lot was not included in the mortgage, and so did not pass to the plaintiffs. If the only description were the "Battey Farm," evidence to show what it included would be pertinent. But that is not the case. Boundaries are given which include the lot sued for. The only question, then, is whether the fact that the area mentioned is smaller than it should be, with the triangular lot included, makes such an inconsistency in the description as to warrant the inference that the description by boundaries is uncertain or incorrect? The rule is well settled that, in case of discrepancy in area, the lines of ascertained boundaries must control, unless there is such an averment or covenant of quantity as to show that the exact quantity was the thing granted. 3 Washb. Real Prop. (3d Ed.) 630, and cases cited.

The case of Waterman v. Andrews, 14 R. I. 589, was within this exception. The boundaries in a deed did not include a lot which had been part of a farm, and which, with the remainder of the farm, exactly made up the area of 46 acres given in the deed. Reference to another deed, by way of consideration, showed that the two were partition deeds, and that, if the area of 46 acres was not maintained, a small lot of trifling value was left undivided. It was evident that the thing granted was the whole area. It was mentioned first in the description, and was necessary to a complete division of the land. It was held, therefore, that the description by area must control. But this case is widely different from that one. The reference to area here is "more or less" an estimate or approximation, while the deed referred to has the very same boundaries, and the lot in question was always included in the Battey farm. There is no inconsistency, and nothing to show that the...