Roberts v. Grace

• Decision Date: 01 January 1871
• Parties: LOUIS ROBERTS v. THOMAS GRACE and others.
• Court: Minnesota Supreme Court

16 Minn. 115

LOUIS ROBERTS

v. THOMAS GRACE and others.

Supreme Court of Minnesota.

Appeal by plaintiff from an order of the district court, Ramsey county, denying a new trial.

The action was brought to reform a deed executed by H. H. Sibley to plaintiff. The defendant claimed, under a subsequent deed from Sibley, a tract which included part of that claimed by plaintiff. Defendants' claim was sustained on trial before a referee, who ordered judgment accordingly.

Lampreys, for appellant.

James Gilfillan, for respondents.

RIPLEY, C. J.

The referee who tried this case, finds that on the fourteenth day of February, 1849, H. H. Sibley, being the owner of a large tract of land in Ramsey county, Minnesota, embracing the land claimed by the plaintiff, and also the land claimed by the defendants, executed and delivered to plaintiff a warranty deed of one acre of land thus described: "One acre of land in the S. E. ¼ of section 32, township 29 north, of range 22 west of the fourth principal meridian, extending from the base of a bench of land north of the town of St. Paul, adjoining on the east by landed by James Thompson, and on the west by land deeded by John Randall to Henry M. Rice; said acre of land so described being two chains in breadth and five chains in depth;" which was duly recorded March 2, 1849. Afterwards, February 22, 1858, said Sibley and his wife, to release her dower, by deed duly recorded, quitclaimed to plaintiff by the same description, except that, instead of "landed by," the words "land deeded to" are used; that on the third of August, 1849, said Sibley conveyed to Peter Hayden, defendants' grantor, by deed duly recorded, one acre of land in section 31, township 29, range 22, and shown in the plan^* which is in the case; that plaintiff's deed was intended to locate his acre in said section 31, and so as to include a part of the Hayden acre as shown in the plan; that said land claimed by plaintiff has never been fenced or inclosed, and has been, ever since the year 1850, used more or less by the plaintiff in quarrying stone, and has been, ever since the year 1850, in the actual possession of said plaintiff; that, prior to the year 1850, it has not been used as a quarry aforesaid, and has not been in the actual occupancy of the plaintiff prior to the year 1850; that the land on the east of the said tract had never been conveyed to James Thompson, but that he was in the possession and occupancy thereof, claiming title thereto, under an understanding with the holder of the legal title that he was entitled thereto at the time of the execution of the deed to plaintiff; that the boundaries of the Thompson land can be readily ascertained, and that the same is the

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

land referred to in said two first-mentioned deeds as the land deeded to James Thompson; that the boundary described in said two first-mentioned deeds as `the base of a bench of land north of the town of St. Paul,' was a sufficiently-certain monument to ascertain the southerly line of the land claimed by the plaintiff, whereby the boundaries on the east and south of the land claimed by the plaintiff, as referred to in said deeds, can be found and are ascertainable with sufficient certainty; that the west and north lines of the land claimed by the plaintiff can only be ascertained by measurement, taking the distance given in the said deeds, and cannot be found by reference to any known monuments, except as before stated. The west boundary, as given in the deeds, appears to have been wholly untrue, there being no land to which such description is applicable.

As a conclusion of law, the referee finds that said Hayden had not any notice, constructive or otherwise, of the said title of plaintiff, and therefore Hayden's deed cuts out plaintiff, to the extent of the strip of land of Hayden's acre, which overlaps plaintiff's, as shown on the plan.

The only question in the case is whether the record of plaintiff's deed was constructive notice to Hayden that the description in it was intended to include part of the acre purchased by him. Plaintiff claims, indeed, in opposition to the finding of the referee that he was at the time of Hayden's purchase in actual possession of the land he claims; therefore that, for this reason also, Hayden is to be affected with constructive notice. In another part of his brief, however, he says, in accordance with the finding of the referee, that plaintiff took possession in 1850. Reference to the case as settled discloses no earlier possession. Plaintiff testifies, indeed, "there was some shanties there when I bought; there were three; they paid me rent after I bought;" and, also, "I had the yellow rock opened near 20 years ago;" which, however, if such rock were on the land, (of which there is no proof,) as it must have been before his purchase, would be immaterial, and the receipt of rent equally so, since it is not stated that any rent was paid prior to Hayden's purchase; and if there had been, the attornment to the grantee of a tenant holding under the grantor, would not supply the want of registry, because there is no visible change of possession to indicate that there had been a change of title. Veazie v. Parker, 23 Me. 170. The finding of the referee seems, therefore, to be correct.

As to the record, the plaintiff insists that the description is sufficiently definite and certain to operate as constructive notice; that it is inconsistent in the referee to find that the south and east boundaries of his land are ascertainable with sufficient certainty, and yet to find that Hayden had no notice; because, if the south and east boundaries are known, the north and west boundaries can (he says) be readily ascertained by measurement.

Taking the fact to be as the referee has found, that it could be sufficiently ascertained from this description that the base of the bench was plaintiff's southern boundary, and that his land adjoined Thompson's acre, as the same is laid down on the...