Pettee v. Omega Chapter of Alpha Gamma Rho.

• Decision Date: 02 January 1934
• Citation: 170 A. 1
• Parties: PETTEE v. OMEGA CHAPTER OF ALPHA GAMMA RHO.
• Court: New Hampshire Supreme Court

170 A. 1

PETTEE

v. OMEGA CHAPTER OF ALPHA GAMMA RHO.^*

Supreme Court of New Hampshire. Strafford.

Jan. 2, 1934.

Transferred from Superior Court Strafford County; Young, Judge.

Bill in equity by Charles H. Pettee against Omega Chapter of Alpha Gamma Rho. A decree was entered in favor of the defendant, and the cause was transferred upon the plaintiff's exceptions to the decree, and to the interpretation of a deed.

Exceptions overruled.

Bill in equity to construe deeds of real estate in Durham and establish the division line between lands of the parties.

The following facts were found by the court:

College street runs practically east and west. Strafford avenue intersects College street from the north at right angles.

The land lying northerly of College street and easterly of Strafford avenue was originally owned partly by the Pettee heirs or estate and partly by the plaintiff. The plaintiff was one of the Pettee heirs.

In 1901 the plaintiff conveyed the corner lot to one Scott. This lot is 123 feet on College street and 115 feet on Strafford avenue, and its northerly boundary is a line running easterly 145 feet parallel with College street.

In 1912 the plaintiff conveyed some of his own land to the Pettee heirs.

March 23, 1915, the Pettee heirs conveyed a lot next northerly of the Scott lot to Frances Hewett. This tract is 126 feet on Strafford avenue, 145 feet on the southerly side adjoining the Scott lot, 147 feet on the northerly side, and about 127 feet on the easterly side adjoining land of the plaintiff. Its southerly and northerly side lines are at right angles to Strafford avenue.

March 25, 1915, the plaintiff in his own right conveyed another lot to Mrs. Hewett adjoining and lying easterly of the tract conveyed to her by the Pettee heirs. This lot is described as being a four-sided tract; the first course beginning at the Scott corner and running by the grantee's land about 127 feet. The second course is a continuation of the northerly line of the grantee's land about 37 feet. The third course is about 129 feet in a straight line to a point in the prolongation of the south line of said Hewett land, 145 feet from Strafford avenue. The fourth course is westerly about 20 feet from the last-named point to the point begun at. The Scott corner and a point 145 feet from Strafford avenue are the same. The deeds of March 23 and March 25 were drawn by the plaintiff.

By warranty deed of August 23, 1924, Mrs. Hewett conveyed both tracts described as one lot to the defendant. The defendant has made excavations and built a tennis court, which extends beyond the Scott corner.

The plaintiff undoubtedly believed that he was conveying a four-sided piece, but he thought the Scott corner was 125 feet from Strafford avenue, instead of 145 feet. He is a trained engineer or surveyor, with a long experience in drawing deeds. He made the survey when the Scott lot was sold, and established the Scott corner.

He claims that the last course in his deed "westerly 20 feet to the point begun at," should be disregarded as surplusage, and that the tract conveyed is triangular in shape, and that the defendant has no title to any land easterly of a line running northerly from the Scott corner to a point in the prolongation of the defendant's northerly boundary 175 feet east of Strafford avenue.

The defendant claims to own and has a deed from Mrs. Hewett to a line from a point in the continuation of its southerly line 165 feet from Strafford avenue running northerly to a point in the continuation of its northerly boundary 175 feet from said avenue.

The disputed area is a tract triangular in shape 20 feet wide at its base or southerly side, with its apex at the northeasterly corner of the defendant's lot.

The plaintiff owns land easterly of the disputed tract, which he has reserved as a passageway. Water and sewer pipes have been placed under it, and extend under land conveyed to Mrs. Hewett whichever contention is correct, and, if her contention is correct, her land will include a part of the land reserved as a passageway.

That part of the disputed tract easterly and northerly of the Scott corner was low and unsuitable for cultivation, and so no use of it was made by the Hewetts, but further north they had a garden and planted fruit trees and grape vines, and their occupancy was practically up to the disputed line.

"The court is of the opinion, and so finds as a fact, that it was the intention of the plaintiff to convey a strip about 37 feet wide at the northerly end and about 20 feet wide at the southerly end; that it was the intention of Mrs. Hewett to acquire such an addition to her original lot; that she and her husband understood during the negotiations before the deeds were passed that by the two deeds she would acquire title to land extending to the easterly line of the disputed tract; that by the deeds they believed she had acquired such a tract, and immediately entered upon it and began occupancy of it, which occupancy has been continued by her and her grantee up to the present time; that she and her successor in title are without fault in the matter, acted in good faith and were justified in their belief that she was and the defendant now is the rightful owner of the disputed tract; that the defendant paid a substantial price for the property, and had no notice, either actual or constructive, (except such constructive notice as the records in the registry of deeds where the deeds were duly recorded would give) of the plaintiff's claim: and that the plaintiff, himself, is at fault, and should bear the consequences of his carelessness, or at least needless mistake."

The court also found that the equities were in favor of the defendant, and entered a decree in its favor. Transferred by Young, J., upon the plaintiff's exceptions to the decree, and to the interpretation of the deed given by the court.

In the course of preparation for argument in this court, "counsel for the plaintiff determined it would be desirable to have the record of evidence transferred along with the deeds and other exhibits used in the trial. In consequence thereof the record of evidence was ordered printed and is herewith submitted as an appendix to the court's findings, ruling and decree."

Conrad E. Snow, of Rochester, for plaintiff.

Hughes & Burns, of Dover (G. T. Hughes, of Dover, orally) for defendant.

PEASLEE, Chief Justice.

The controversy is over the meaning of a deed given by the plaintiff to the defendant's grantor in 1915. The description in the deed is as follows:

"A certain tract of land situate in Durham, N. H., bounded and described as follows, to wit: Bordering on and situated East of land conveyed March 23, 1915, to Prances L. Hewett by heirs of Horace Pettee. Commencing at the southeast corner of said Hewett land thence northerly along said Hewett land about 127 feet to land of Horace Pettee Estate; thence easterly along the prolongation of the northerly side of said Hewett land about 37 ft. to a point 175 ft. from private way, west of said Hewett land; thence southerly about 129 ft. in a straight line to a point in the prolongation of the South line of said Hewett land 145 ft. from said private way, thence westerly about 20 ft. to the point begun at.

"Reserving the right for myself, my heirs and assigns to enter upon said land when necessary to repair or replace all water and sewer pipes now situated on said land doing no unnecessary damage."

The private way above referred to is Strafford avenue.

The description is plain upon its face. It delineates a four-sided tract, lying easterly of and adjoining other land of the grantee and about 20 feet wide at its southerly end. This interpretation is disputed, because upon an attempt to apply the deed to the land an inconsistency in the description becomes apparent. The Scott corner, which is the admitted starting point and the southwesterly corner of the granted premises, is 145 feet from Strafford avenue. Hence, it is argued, as the deed calls for a southeasterly bound 145 feet from that avenue, the easterly line runs southerly to that point; and, since it appears that this point is also the Scott corner, that part of the deed reading "to a point in the prolongation of the south line of said Hewett land" and "thence westerly about 20 ft. to the point begun at" is to be rejected as surplusage.

Manifestly, the deed contains inconsistent matter relating to the location of the southeasterly corner of the granted premises. If it is only 145 feet from the avenue, it is not on a "prolongation of the south line" of other land of the grantee. Neither is it "about 20 ft.," or any other distance, from the point of beginning. If it answers either of the lastmentioned calls of the deed, it is more than 145 feet from the street.

ft, 2] The problem for solution is, which of these inconsistent descriptions is to prevail? As an did to a correct interpretation, the surrounding circumstances are to be taken into consideration. The grantor is a civil engineer and surveyor of long experience. Much has been made in argument of the mental processes and physical acts which entered into his formulation of the description in this deed. But all that is immaterial upon the issue here. Neither the thoughts nor the acts of one party, preceding the execution of a written contract and not known to the other party thereto, can be used to explain the meaning of the writing. Smart v. Huckins, 82 N. H. 342, 134 A. 520, and cases there reviewed.

It is evident that there is error in the description. But the origin of that error, so far as it lay exclusively in the mind of one party, is immaterial. Any surrounding fact, open to observation, or any thought expressed by one party to the other, is to be considered for what it may be worth. There is but little that comes within this limitation which can be used in the present instance.

As to whether the parties went upon the premises and there...