Hathorn v. Hinds

• Decision Date: 16 April 1879
• Citation: 69 Me. 326
• Parties: GOING HATHORN v. CROSBY HINDS, executor.
• Court: Maine Supreme Court

69 Me. 326

GOING HATHORN v. CROSBY HINDS, executor.

Supreme Judicial Court of Maine.

April 16, 1879

ON EXCEPTIONS.

Going Hathorn having claimed against the estate of David Hunter the defendant's testate, one hundred and fifty dollars and interest for breach of warranty in a deed given by said Hunter, October 11, 1851, to him, by reason of a portion of the land so deeded having been by him sold to some other person, a statute reference was executed between the plaintiff and defendant. A hearing was duly had before the referee (Solyman Heath, Esq.) who, on request, made an alternative award, submitting the questions of law arising on the facts found by him to the determination of the court. His report is as follows:

" The defendant's testator sold and conveyed to said Hathorn by deed of warranty, on October 11, 1851, lots No. 4 and 5 of 100 acres each, in 5th Range in Pittsfield, and the only question arising is, whether at the time of said conveyance, the said testator was seized of the east half of said lot No. 5. The description in said deed was, ‘ Beginning at the north-west corner of lot No. 4 on the town line betwixt Pittsfield and Hartland, thence on said line easterly the width of the two lots No. 4 and 5 to land formerly owned by David and James Hunter and occupied by Warren Spearin, thence southerly on said Hunter's line to the southeast corner of lot No. 5, thence westerly across said lots No. 4 and 5 to land owned by the heirs of the late Levi Prince, thence northerly by said Prince's land to the first mentioned bound, being the same land formerly owned by the late John Dutton of Vassalboro’, containing two hundred acres more or less.'

Said Dutton sold and conveyed the same lot by warranty deed to the testator, February 28, 1845, by the same description, but concluding thus: ‘ Being same I bought of Gardiner & Bowman, and to be the same where John Hunnewell now lives, containing two hundred acres more or less.’ John Hunnewell lived on the eastern half of lot No. 5.

I also find by copies of deeds produced tat Bowman conveyed to John Dutton, Jona. Dutton and Ezekiel Small in July, 1835, part of lot 4 in 5 Range, and part of lot 4 in 4 Range, and that Gardiner conveyed to said Dutton & Small in August, 1835 the west half of lot No. 5, and the remaining part of lot No 4 in 5 Range, not conveyed to Bowman, and part of lots 4 and 5 in 4 Range, being contiguous lots.

I also find that the testator had a conveyance by warranty deed in 1834, from one Bragg, of the east half of lot No. 5 and west half of lot No. 6 in 5 Range.

I also find that the testator, with others, on January 24, 1849, conveyed by a deed of quitclaim to one Francis Spearin, the land described as follows:

‘ A tract of land in Pittsfield in said county of Somerset, beginning at the north-west corner of lot No. 6 in Pittsfield, thence running easterly on said town line to the north-east corner of said lot; thence southerly on the east line of said lot to the south-east corner of said lot; thence westerly on the south line of said lot to land formerly owned by John Dutton; thence north on the west line of said lot to the first mentioned bounds, being the same lot of land conveyed to us by Jeremiah Bragg, and formerly in possession of Warren Spearin, to contain one hundred acres more or less.’

No question was made at the hearing that the testator at the time of his conveyance to Hathorn of lots No. 4 and 5 was not the owner of said lots, unless the deed given by him to Spearin in 1849 conveyed the east half of lot No. 5; and I find that he was the owner unless the court holds that the legal construction of the deed aforesaid, and any other facts by me found in this case, should forbid it.

Now if the court shall determine upon the facts found by me, and the legal construction of the deed aforesaid, that the testator was not seized of the easterly half of lot No. 5 in 5 Range at the time of his conveyance to Hathorn, then I award that said Hathorn recover against the estate of said testator in the hands of Crosby Hinds, his executor, the sum of three hundred and sixty-six dollars damages, and costs of reference taxed at thirty-one dollars and fifty cents. and costs of court to be taxed by the court. But if the court should be of the opinion that the testator conveyed to Hathorn a good title of the easterly half of lot No. 5 in 5 Range, and was seized thereof at the time of said conveyance, then I award that Crosby Hinds, as such executor, recover against said Hathorn costs of reference taxed at thirty-one dollars and fifty cents and costs of court to be taxed by the court.

I annex a sketch of the several lots."

(Image Omitted)

TABLE

Judgment pro forma was entered by the Justice presiding, upon the report of the referee, and the plaintiff alleged exceptions.

D. D. Stewart, for the plaintiff, contended:

That Dutton never owned, and never had any pretense of title to east half of lot five; that Hunter acquired from Bragg title to east half of five and west half of six, and conveyed the tract thus acquired to Spearin, erroneously describing it as six, when in fact he never owned the east half of six. He only intended to convey what he owned, and there is enough in the deed to correct the mistake.

Any boundary, or any part of the description of the premises mentioned in a deed, may be rejected, " when it is clear from all the circumstances of the case that it was erroneously inserted." Bosworth v. Sturtevant, 2 Cush. 393. Forbes v. Hall, 51 Me. 570. Wing v. Burgiss, 13 Me. 111. Jones v. Buck, 54 Me. 301. Chesley v. Holmes, 40 Me. 536. Abbott v. Pike, 33 Me. 204-6-7.

As Spearin holds east half of five by deed, January 24, 1849, the deed of the same half, two years later (October 11, 1851,) to plaintiff, conveyed no title against Spearin, and the covenant of warranty is broken, and plaintiff is entitled to recover.

C. Hinds, for the defendant.

PETERS J.

The intention of the parties has been called the polar star in the construction of writings. This rule controls all others. Of course it must be such an intention as is effectually expressed in the writing. Then there are certain rules or guides that are considered valuable to aid in getting at the intention. Among them are these: Erroneous or defective references to the sources of title are not to vary a prior description clearly and definitely given. Crosby v Bradbury, 20 Me. 61. A precedent particular description is not to be impaired by a subsequent general description or reference. Melvin v. Proprietors, & c., 5 Metc. 15, 29. Parties are supposed to rely more on a first description, than on an attempted re-description, other things equal. A reference is more important where the description is imperfect without the reference, and where the description is aided rather than controlled by it. Weller v. Barber, 110 Mass. 44, 47. Definite boundaries subsequently used will limit the generality of a term previously used, nothing else controlling. Haynes v. Young, 36 Me. 557. Stewart v. Davis, 63 Me. 537, and cases there cited. Whiting v. Dewey, 15 Pick....