Meir-Nandorf v. Milner

• Decision Date: 25 October 1921
• Citation: 201 P. 720,34 Idaho 396
• Parties: CATERINE MEIR-NANDORF, Respondent, v. JAMES L. MILNER, L. A. HARTERT, O. A. JOHANNESSEN, and J. M. MACGREGOR, Appellants
• Court: Idaho Supreme Court

201 P. 720

34 Idaho 396

CATERINE MEIR-NANDORF, Respondent, v. JAMES L. MILNER, L. A. HARTERT, O. A. JOHANNESSEN, and J. M. MACGREGOR, Appellants

Supreme Court of Idaho

October 25, 1921

WARRANTY DEED-CONSTRUCTION-DESCRIPTION OF LAND.

1. If the language of a deed is plain and unambiguous, it must be given such effect as the parties thereto clearly intended it to have, and in such case extrinsic evidence is not admissible to determine the intention of the parties.

2. When there is a clear and unambiguous description in a deed, the court will construe the terms used.

APPEAL from the District Court of the Ninth Judicial District, for Bonneville County. Hon. James G. Gwinn, Judge.

Action for damages. From judgment for plaintiff, defendant appeals. Affirmed.

Judgment affirmed, with costs to respondent.

D. E Rathbun, for Appellants.

A deed in which the description is sufficiently definite to locate the land with certainty, should, as to the land conveyed, be construed from the instrument itself, and such construction is for the court. (Folk v. Graham, 82 S.C. 66, 62 S.E. 1106; Holmes v. Weinheimer, 66 S.C. 18, 44 S.E 82; New River Mineral Co. v. Painter, 100 Va. 507, 42 S.E. 300; Brown v. Huger, 21 How. (U. S.) 305, 16 L.Ed. 125; Piles v. Bouldin, 11 Wheat. (U. S.) 325, 6 L.Ed. 486; 13 Cyc. 607G; 2 Devlin on Real Estate, 3d ed., sec. 835.)

In an action for a breach of a covenant of warranty, evidence should not be heard to modify or enlarge the description of land in a warranty deed when that description can be definitely ascertained from the deed and other instruments referred to in the deed and made a part of the deed. (2 Devlin on Real Property, 3d ed., sec. 1042; 13 Cyc. 626B; 1 Jones on Law of Real Property, sec. 335; Folk v. Graham, 82 S.C. 66, 62 S.E. 1106; New River v. Painter, supra; Benedict v. Gaylord, 11 Conn. 332, 29 Am. Dec. 299; Clement v. Bank of Rutland, 61 Vt. 298, 17 A. 717, 4 L. R. A. 425.)

W. P. Hanson and Wm. L. McConnell, for Respondent.

Whatever is expressly granted, conveyed or promised cannot be restricted or diminished by subsequent provisions or restrictions. (Pike v. Munroe, 36 Me. 309, 58 Am. Dec. 751; Maker v. Lazell, 83 Me. 562, 23 Am. St. 795, 22 A. 474; Friedman v. Nelson, 53 Cal. 589; Piper v. True, 36 Cal. 606.)

When land is conveyed by metes and bounds, or any other particular description, explanation of what is intended to be conveyed does not limit or enlarge the grant. (Brown v. Heard, 85 Me. 294, 27 A. 182; Hobbs v. Payson, 85 Me. 498, 27 A. 519; Smith v. Sweat, 90 Me. 528, 38 A. 554; Friedman v. Nelson, supra; Piper v. True, supra.)

DUNN, J. Rice, C. J., and Budge, McCarthy and Lee, JJ., concur.

OPINION

DUNN, J.

This action was brought by the respondent against appellants to recover $ 786.18 as damages for the loss of 26.65 acres of land which respondent claims to have been included in a warranty deed made by appellants to her, title to which land failed because of its being a part of a school section belonging to the state of Idaho.

The warranty deed in question conveyed, "All the certain lot, piece, or parcel of land situate, lying and being in the counties of Fremont and Bingham and state of Idaho, and bounded and described as follows, to wit: That certain tract of land commonly known as 'Bear Island' and situated principally in section thirty-five (35), township four (4) north, range thirty-seven (37) east, Boise Meridian, accordingly as the same may appear described in patent yet to be issued. Said land having been filed upon by Thomas Weir, under Desert Entry No. 2116, together with all water rights, ditch rights, water-wheel, and appurtenances thereto belonging. Together with main land connecting bridge.

"This deed is intended to convey all interest and title taken by first parties in deed recorded on page 501, in Book 'P' of Deeds, records of Fremont county, Idaho, covering all property therein described."

At the time of the making of the desert land entry mentioned in this deed Bear Island was unsurveyed. The entire island was included in the entry and on the filing of the plat of the official survey application was made by Weir to adjust his entry to the land as shown by the official plat, which designated the land in the island as lot 7, section 2, township 3 north, lots 6, 7 and 8, section 35, and lot 4, section 36, township 4 north, all in range 37 east, Boise Meridian. The application to adjust the entry to the lands above described was rejected as to lot 4, section 36, because of the fact that upon approval of the survey title to said lot 4 passed to the state of Idaho under the provisions of the act of Congress of July 3, 1890. The adjustment was allowed as to the remaining land in said island and patent for the last named lands was issued to Thomas Weir September 6, 1912.

The respondent alleges the conveyance of the entire island to her by the foregoing deed and that on or about the first day of March, 1912, she was notified that said lot 4, embraced within said island and which she claimed was a part of the land conveyed by appellants to respondent, was school land, the title to which was in the state of Idaho, and that the application of Weir for patent therefor had been rejected; that she immediately notified appellants of this fact and demanded that they procure for her title to said lot 4; that on or about the fifteenth day of July the state of Idaho asserted its claim to said lot 4 and advertised the same for sale at public auction; that the said state did on or about the thirteenth day of August sell said land at public auction; that said appellants at that time did refuse, and ever since have refused, to perfect respondent's title to said tract, and that in order to protect her interest therein and prevent great damage being done to the balance of the land described in said warranty deed respondent was compelled to and did purchase said land from the state of Idaho at public auction and paid therefor to said state the sum of $ 786.18.

Appellants deny the conveyance of the entire island, and allege that the deed was intended to convey, and did convey, only such portions of the island as might be patented to Thomas Weir. In other words, it is their claim that the conveyance was made so that if Weir received patent to the entire island the deed would convey the entire island, but if, as turned out to be the case, only a portion of the island was patented to Weir such portion only would be conveyed to respondent by the deed, and that the warranty of title would extend no further than to include such lands as might be patented to Weir. The whole controversy between the parties is whether or not the deed unconditionally conveyed the portion of the land lying within section 36.

The case was submitted to a jury and a verdict returned as prayed for in the complaint. Appellants complain of certain instructions given by the court and certain others requested and refused. They also assign as error the overruling of appellants' demurrer to the complaint; the denying of appellants' motion for a nonsuit; the submission by the court to the jury of the determination of what land was conveyed by the deed, and of the rendering of judgment by the court on the verdict and answers to certain interrogatories that were submitted to the jury, for the reason that the judgment is not consistent with the answers to the special questions submitted and is contrary to the law of the case.

The court instructed the jury that the deed in controversy was so ambiguous that it could not be determined therefrom whether the land in section 36 was included in said deed or not, and that for this reason it was necessary to submit to the jury the facts and circumstances surrounding the transaction to assist them in determining whether or not it was intended by said deed to convey said land in section 36 which instruction appellants claim was error. We think this was error on the part of the trial court, but appellants cannot be heard to complain of it for the reason that it was more favorable to them than it ought to have been. As we view it, there was no ambiguity whatever in this deed, and the trial court should have instructed the jury that it was clearly intended thereby to convey all of the land in Bear Island, which would...