Perry v. Buswell

• Decision Date: 29 June 1915
• Parties: PERRY v. BUSWELL.
• Court: Maine Supreme Court

94 A. 483

113 Me. 399

PERRY

v. BUSWELL.

Supreme Judicial Court of Maine.

June 29, 1915.

Report from Supreme Judicial Court, Penobscot County, at Law.

Action by Arlena M. Perry against Charles R. Buswell. On report Judgment for defendant.

Argued before SAVAGE, C. J., and SPEAR, CORNISH, BIRD, HALEY, and PHILBROOK, JJ.

Louis C. Stearns and George H. Worster, both of Bangor, for plaintiff. Hudson & Hudson, of Guilford, for defendant.

SAVAGE, C. J. This case comes up on report. The question involved is the title to certain real estate in Garland. The facts are not in dispute. In 1869, George S. Hill was the owner of "a homestead farm," situated partly in Garland and partly in Exeter. He took title to the part in Garland and to the part in Exeter by separate deeds, at different times. Hill conveyed the whole to one Brown, and Brown to one Gould. Gould mortgaged back to Brown, August 17, 1909. The description in the mortgage was "a cer- tain lot or parcel of land known as the homestead of said James A. Brown, lying a part in said town of Exeter and part in Garland in said county of Penobscot and being the same premises" described in certain title deeds referred to. In 1913 Gould conveyed to the defendant—

"all my right, title and interest to certain real estate situate in the town of Exeter, county of Penobscot, and state of Maine, being my homestead place and the same real estate described in a mortgage given by me to James A. Brown under date of August 17, 1909, and recorded in Penobscot Registry of Deeds, in vol. 795, page 471, to which mortgage reference may be had for a full and particular description."

Subsequently Gould gave a deed of that part of the homestead which lies in Garland to one Appleby, through whom the plaintiff claims title.

The defendant contends that the entire homestead farm, the part in Garland, as well as the part in Exeter, came to him by Gould's deed. The plaintiff claims that the Gould deed conveyed only land in Exeter. The first phrase in the description in the Gould deed, "certain real estate situate in the town of Exeter," standing alone, certainly limits the grant to land in Exeter. Can the grant be enlarged by the phrase "being my homestead place," without words of limitation, and by the reference to the Brown mortgage, which describes the homestead farm as being in both Exeter and Garland, and which is referred to for "a full and particular description"? And if it can be, should it be so enlarged? These are the questions.

The cardinal rule for the interpretation of deeds and other written instruments is the expressed intention of the parties, gathered from all parts of the instrument, giving each word its due force, and read in the light of existing conditions and circumstances. It is the intention effectually expressed, not merely surmised. This rule controls all others. Technical rules of construction of deeds may be resorted to as an aid in getting at the intention. And technical rules may be controlling, when nothing to the contrary is shown by the deed. The ancient rigidity of technical rules has given way in modern times to the more sensible and practical rule of actual expressed intention. Child v. Picket, 4 Me. (4 Greenl.) 471; Pike v. Munroe, 36 Me. 309, 58 Am. Dec. 751; Hathorn v. Hinds, 69 Me. 326; Proctor v. M. C. R. R. Co., 96 Me. 458, 52 Atl. 933; Whitmore v. Brown, 100 Me. 410, 61 Atl. 985; Morse v. Phillips, 108 Me. 63, 78 Atl. 1125.

Of all rules of construction none is more rigid than the one that where the language describing the grant is specific and definite, as, for instance, by metes and bounds, the grant cannot be enlarged or diminished by a later general description, or by mere reference to deeds through which title was obtained. And this rule holds because the specific description is necessarily more indicative of intention than the general one. Jones v. Webster Woolen Co., 85 Me. 210, 27 Atl. 105; Brown v. Heard, 85 Me. 294, 27 Atl. 182; Reed v. Knights, 87 Me. 181, 32 Atl. 870; Smith v. Sweat, 90 Me. 528, 38 Atl. 554; Crabtree v. Miller, 194 Mass. 123, 80 N. E. 225.

So, it is true that a general description may be made more certain, and be controlled by a later particular one, or by reference to prior deeds. In Allen v. Allen, 14 Me. 387, "my homestead farm, being lot No. 13," was held to pass only so much of the homestead farm as lay within lot 13. In Thorndike v. Richards, 13 Me: 430, "all that tract of land called and known by the name of Pitts or Beauchamp Neck," followed by metes and bounds, conveyed only so much of the Neck as lay within the specific boundaries. In Haynes v. Young, 36 Me. 557, "lot No. 170," followed by metes and bounds, the grant was restricted to land within the boundaries described. In Stewart v. Davis, 63 Me. 539, "the farm on which I now live being lot 9" conveyed only so much of the farm as was within lot 9. See, also, Bates v. Poster, 59 Me. 157, 8 Am. Rep. 406; Hamlin v. Attorney General, 195 Mass. 309, 81 N. E. 275.

In a few cases, a description in general terms, followed by a more particular description, or by reference, for description, to a prior deed, the language of the whole deed has led the court to give effect to the general description. Such cases are Keith v. Reynolds, 3 Me. (3 Greenl.) 393; Willard v. Moulton, 4 Me. (4 Greenl.) 14; Child v. Ficket, 4 Me. (4 Greenl.) 471; Field v. Huston, 21 Me. 69. See, also, Lovejoy v. Lovett, 124 Mass. 270.

References to prior conveyances are made for varying purposes. They are made sometimes for the purpose of showing the source of title; sometimes to show the identity of the land conveyed; sometimes, and generally by way of caution, to afford a more definite description. It is probably true that in the larger number of cases the reference is made to show the source of title. For illustrations, see Hathorn v. Hinds, supra; Shaw v. Bisbee, 83 Me. 400, 22 Atl. 361; Jones v. Webster Woolen Co., supra; Brown v. Heard, supra; Smith v. Sweat, supra. In Shaw v. Bisbee, supra, the court said that:

"Reference * * * to * * * prior deeds, unless expressly appearing otherwise, is only intended to help identify the premises conveyed, and not to determine the quality or quantity of the title."

But a reference to other deeds, when it appears that it was so intended, makes them a part of the description, as much as if their language had been copied as a part of it. Field v. Huston, supra.

The cases cited are enough to illustrate the application of the rule of construction by expressed intention to the ever-varying phraseology of deeds. And construing the deed before us in the light of judicial authority, we think it is reasonably certain that the parties intended it as a grant of the "homestead place," both in Exeter and in Garland. We do not mean to say that it is absolutely certain. The omission of the word "Garland" in...