Huntley v. Houghton

• Decision Date: 18 October 1911
• Citation: 81 A. 452,85 Vt. 200
• Parties: HUNTLEY et al. v. HOUGHTON et al.
• Court: Vermont Supreme Court

81 A. 452

85 Vt. 200

HUNTLEY et al.

v. HOUGHTON et al.

Supreme Court of Vermont. Windham.

Oct. 18, 1911.

Exceptions from Windham County Court; Alfred A. Hall, Judge.

Action by Martin C. Huntley and others against Stephen Houghton and others.Judgment for defendants, and plaintiffs except.Judgment reversed, and rendered for plaintiffs.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Cudworth & Pierce, for plaintiffs.

F. C. Archibald, for defendants.

HASELTON, J.This was an action of trespass on the freehold.The case was submitted to the county court on an agreed statement of facts, and on such statement judgment was rendered pro forma for the defendant.The plaintiff excepted.

In 1883Mary B. G. Eddy conveyed to Stephen Houghton a certain farm in Londonderry, containing, according to the description in the deed, about 95 acres, subject to an annual rent to the Londonderry Grammar School Corporation.In 1890Frank P. Fuller conveyed to the same grantee a triangular piece of land of about 3 1/2 acres adjoining the land conveyed by the Eddy deed.This triangular piece of land was subject to an annual rent of 63 cents.In 1896 Houghton and his wife gave the Factory Point National Bank a mortgage of all their real estate in Londonderry, describing it as the farm "owned and formerly occupied" by them, containing 100 acres, more or less, and bounding it by the lands of adjoining owners.The 3 1/2-acre piece was one corner of the farm so mortgaged.This mortgage was foreclosed by decree which became absolute December 11, 1900.The description in the decree followed the mortgage.July 26, 1901, the Factory Point National Bank gave the plaintiffs a deed, which the plaintiffs claim was a conveyance of the whole farm covered by the mortgage and decree, but which, according to the defendants' claim, did not convey the 3 1/2-acre piece, which is the piece to which this litigation relates.The deed from the national bank to the plaintiffs designated the land conveyed as the farm "formerly owned by Stephen Houghton," and, as we have seen, the 3 1/2-acre piece had constituted a part of that farm.The deed bounded the farm on the north, south, east, and west by lands of others, and this part of the description correctly describes the whole farm, which the bank got under the decree in its favor, and is not a correct description if the premises conveyed by the bank to the defendants do not include the 3 1/2-acre piece.The deed then goes on to say that the premises are subject to an annual rental payable to the Londonderry Grammar School Corporation, and that they are the same premises conveyed to Stephen Houghton by the Eddy deed of 1883, and to that deed and the record thereof reference is made for more particular description.

It will be seen that the parts of the description are inconsistent, and the question is: What are the controlling elements?While the reference to a former deed is in terms for a more particular description, it is what the law terms a general description.Cummings v. Black, 65 Vt. 76, 25 Atl. 906.In construing the descriptive part of the deed, the intention of the parties, when it can be gathered therefrom, is to govern, and the general rule is stated in the case just cited in the following language: "In ascertaining such intention, when the particular and the general description do not coincide, effect must be given to the particular description, such as is expressed by courses and distances, by permanent muniments, by lot and range, and by the adjoining surrounding lands.It is less probable that the parties would make an unnoticed mistake in the particular than in the general description."

We find nothing in this case to indicate that the general rule should not apply; but, on the contrary, we find several things which indicate that it should.If this national bank had intended to reserve from its deed a part of the farm which it had acquired by foreclosure, it is...