Jones v. McNarrin

• Decision Date: 19 June 1878
• Citation: 68 Me. 334
• Parties: Albion K. JONES v. James McNARRIN.
• Court: Maine Supreme Court

68 Me. 334

Albion K. JONES v. James McNARRIN.

Supreme Judicial Court of Maine.

June 19, 1878

ON REPORT.

WRIT OF ENTRY, for a certain piece of land with the buildings thereon, situate in Oldtown, in the county of Penobscot, and bounded as follows, to wit: " Beginning at the southeast corner of the lot of land occupied by Moses Buck, in June 1862, and erroneously called lot No. 29 in a levy of this plaintiff against said Moses Buck, made June 9, 1862; thence northerly along the west side of the Bennock road, to a point opposite the centre of the front door of the house on said lot, through the middle of the front entry of said house, to the east line or side of the stable; thence southerly at right angles, by the east side of said stable, to the south line of said lot; thence east to the first mentioned bound."

The plaintiff having an execution against one Moses Buck, levied June 9, 1862, on the real estate in suit, and afterwards recovered judgment against him for the land described as follows: " Commencing at the southeast corner of lot No 29, according to Treat's plan of Upper Stillwater in Oldtown; thence northerly along the west side of the Bennock road to a point opposite the center of the front door of the house on said lot; thence," & c., the rest of the description being the same as in the declaration.

Pending the action of Jones v. Buck, Buck gave a deed of warranty, for a valuable consideration, of the land in question, which came by intermediate conveyances to the defendant. The land actually levied on was erroneously described in the levy as lot No. 29, and the action for its recovery, as shown in case of Jones v. Buck, 54 Me 301, which makes part of this case, was maintained, on the ground that, although the starting point was " the S. E. corner of lot number 29," none of the other calls applied to that lot, but all except the first did apply to lot 32. Additional evidence in this case tended to show another state of facts, and that all the calls in the levy were applicable as well to lot 29 as to lot 32.

J. Baker, for the plaintiff, relied upon Jones v. Buck, 54 Me. 301.

W. H. McCrillis, for the defendant, contended that, although Jones v. Buck stated the law correctly on the facts assumed, the decision did not bind McNarrin, because the facts in that case were not correctly stated, the description in the levy as recorded in the registry of deeds applying to 29 as well as to 32, and the declaration in that case, following in terms the erroneous description of the levy, did not remove the ambiguity; that while both the registry and the lis pendens gave his client constructive notice as to lot 29, neither of them gave him such notice as to lot 32.

PETERS, J.

No denial is made, that on July 23, 1864, Moses Buck, by deed of warranty and for a full consideration, conveyed lot 70 in Upper Stillwater to a person, under whom the defendant now holds possession of the same. Lot 70, by Howard's plan, includes what was 32 by Treat's plan of the same premises.

The demandant claims to be entitled to lot 32, by virtue of a levy made by him against Moses Buck, on June 9, 1862, prior in time to the defendant's title. The levy describes the land taken, " as the estate in fee simple, in severalty, and in possession of Moses Buck, the metes and bounds whereof are as follows: Commencing at the southeast corner of lot No. 29, according to Treat's plan, at Upper Stillwater in Oldtown; " and the balance of the description consists in a specification of full metes and bounds.

It appears clearly, by the evidence now reported, that this description would identify a part of lot 32 on Treat's plan as well as it does a part of lot 29 on that plan, provided the number 32 should be inserted in the description instead of the number 29. With the exception of the starting point, the language delineating the boundaries of either lot may very correctly be identically the same. Both lots (29 and 32) at the date of the levy were owned in fee simple, in severalty, and in possession by the execution debtor, Buck. The defendant does not admit the coincidence of description to be as perfect as we state it, but as the descriptions, excepting the number of lot, are, at least, substantially alike, for the purpose of this discussion we will regard them, with the exceptions stated, as if they did exactly correspond.

It is, however, suggested that the testimony of Buck, which establishes the identity of the two descriptions, may be disregarded as conflicting with statements made by him at a former trial. There is no absolute contradiction. At the former trial he testified in these words: " The description in the levy describes the house on 32 except the number of the lot." He says the same now. He did not say at the former trial that the same language was not descriptive of 29 as well as applicable to 32. David Norton at the former trial testified that the declaration in the writ covered the description of lot 29, and Buck nowhere denied it. Buck's point evidently was, that the levy was designed to be upon 32, and was void for misdescription. But if it were otherwise, Buck's present testimony cannot be contradicted in this way, the report of the former trial coming in, as it did, under positive objection. Frye v. Gragg, 35 Me. 29.

The demandant claims that, as matter of fact, the appraisal was made of a part of lot 32 and not of a part of 29, and the levy was intended to embrace a part of the former and not of the latter lot. The first question is, whether, from the facts properly in proof, a subsequent purchaser can be charged with notice that 32 was levied upon, by the recitals in the extent recorded in the registry of deeds. We think not. The registry is silent as to 32. It expressly informs the world that only 29 was taken. By none of the tests of interpretation could it be otherwise. In Birdsall v. Russell, 29 N.Y. 220, 250, the doctrine is enunciated in these words: " The rights of a purchaser are not to be affected by constructive notice, unless it clearly appear that the inquiry suggested by the facts disclosed at the time of the purchase would, if fairly pursued, result in the discovery of the defect existing but hidden at the time. There must appear to be, in the nature of the case, such a connection between the facts discovered and the further facts to be discovered, that the former may be said to furnish a clue--a reasonable and natural clue--to the latter." Apply the severe rule laid down by Lord Hardwicke, in Smith v. Low (1 Atk. 489), and followed ever since, as the rule of constructive notice in equity, that what is sufficient to put the party on inquiry is good notice. What in this case could lead a purchaser to inquire beyond the facts so clearly declared in the record? He desires to see if 32 is clear of incumbrance. In his examination he finds that 29 has been levied upon. He ascertains that Buck owned 29 as well as 32. He finds no incumbrancer in the actual possession of 32. The record informs him that the land taken has certain definite boundaries. He finds them exactly fitted to lot 29, and demonstrating it perfectly. He finds every call exactly answered. He finds 29 included and 32 excluded by the description. Nothing in the registry warns him that he is at any risk or peril in taking the deed. If there had been any uncertainty in the description, he should have made further inquiry; but he finds a certainty of description. If the description had been a general one, he should have investigated until he ascertained to what it applied. But he finds it in all respects particular. The position of the demandant is, that the number 29 may be rejected as false demonstration. It cannot be. It is not a false nor impossible nor inconsistent call. If it had been, the purchaser should have translated the difficulty somehow. But it was neither, and so far from it that it comported exactly with the rest of the description. It was in truth the vital and indispensable point of the description. The rule that one call may be rejected never applies where the description includes several particulars, all of which are necessary to ascertain the estate to be conveyed. Herrick v. Hopkins, 23 Me. 217. This is a doctrine that prevails through all the cases. Nor can parol proof be admitted to show what property was designed to have been levied upon by the creditor. Young v. McGown, 59 Me. 349, for excellent reasons denies such a power.

The authorities are uniform upon this branch of the case illustrating it under various different phases of fact. A recorded deed of " forty-five feet in the rear of lot one in block twenty," is not sufficient to lead a subsequent purchaser to inquire, and thereupon learn, that the land is not " in block twenty," but in block sixteen. Rogers v. Kavanaugh, 24 Ill. 583. The record of a deed of land described as " lot and six," does not impart constructive notice to a subsequent purchaser, that lot one in block six was intended by the description. Nelson v. Wade, 21 Iowa 49. Where a deed of the " east" half of a lot is recorded as a deed of the " west" half, a subsequent purchaser of the east half, without actual notice of the fact, will be protected. Sanger v. Craigue, 10 Vt. 555. A mistake in the number of a section is not cured by a reference to the land as that patented to A B, for service in M's company in the late war, without proof that there was but one person answering to that description, so as to render an alteration of the number immaterial. Montag v. Linn, 23 Ill. 551. In the case of Loomis v. Jackson,...