Newton v. McKay

• Decision Date: 27 January 1874
• Citation: 29 Mich. 1
• Court: Michigan Supreme Court
• Parties: Archibald P. Newton and another v. Angus McKay and another

29 Mich. 1

Archibald P. Newton and another v. Angus McKay and another

Supreme Court of Michigan

January 27, 1874

Submitted on Briefs January 9, 1874

Error to Cheboygan Circuit.

Ejectment. Plaintiffs bring error. Reversed.

Judgment set aside, with costs, and a new trial ordered.

W. S Humphrey and Atkinson & Hawley, for plaintiffs in error.

L. S Trowbridge, for defendants in error.

Graves Ch. J. Campbell and Cooley, JJ., concurred. Christiancy, J., did not sit in this case.

OPINION

Graves, Ch. J.

This was ejectment by the plaintiffs to recover part of a lot in Cheboygan. The cause was tried by the court sitting without a jury. Both parties derived title fro Jacob Sammons.

The plaintiffs claimed under a recorded grant from him to one Genereaux, of May 1, 1852, and the defendants under a deed made by Jacob Sammons to his son, Francis M. Sammons, on the 24th of September, 1859. The court gave judgment for the defendants on the ground that the grant to Genereaux was void for uncertainty. That instrument, as set forth in the record, was as follows:

"Jacob Sammons and wife to F. H. Genereaux.

"This indenture made and agreed to between Jacob Sammons of the first part, and F. H. Genereaux of the second part, both of Michigan, and the county of Mackinaw, witnesseth: that the said party of the first part for and in consideration of the sum of fifty dollars, to him in hand paid by the party of the second part, the receipt whereof is hereby acknowledged and confirmed, this first day of May, one thousand eight hundred and fifty-two, do grant, bargain, sell and convey, and does by these presents bind his heirs, executors, administrators and assigns, all that certain tract or parcel of land being and known as lot number forty-one (41), in the village of Cheboygan, together with all singular, and the appurtenances thereunto belonging, for himself, his heirs and assigns, to have and to hold forever, and will warrant and defend against whomsoever.

"In testimony whereof we have hereunto set our hands and seals the day and year above written.

Jacob Sammons.

Chloe Ann Sammons.

"Signed, sealed and delivered in presence of W. A. Barr, William A. Rice."

It appears that this instrument was delivered to Genereaux, and that he went into possession under it. The objection taken to it is that no grantee is certainly named or sufficiently described to entitle it to effect as a conveyance.

It is undoubtedly true that to constitute a valid conveyance, the grant must in some way distinguish the grantee from the rest of the world. But it is equally true, that if upon a view of the whole instrument he is pointed out, even though the name of baptism is not given at all, the grant will not fail. The whole writing is always to be considered, and the intent will not be defeated by false English or irregular arrangement, unless the defect is so serious as absolutely to preclude the ascertainment of the meaning of the parties through the means furnished by the whole document and such extrinsic aids as the law permits.

It is not indispensable that the name of the grantee, if given should be inserted in the premises. If the instrument shows who he is, if it designates him, and so identifies him that...