Sherwood v. Whiting

• Decision Date: 15 February 1887
• Citation: 8 A. 80,54 Conn. 330
• Court: Connecticut Supreme Court
• Parties: SHERWOOD and Wife v. WHITING and others.

8 A. 80

54 Conn. 330

SHERWOOD and Wife

v. WHITING and others.

Supreme Court of Errors of Connecticut.

February 15, 1887.

J. C. Chamberlain, for plaintiff.

H. J. Curtis and J. A. Joyce, for defendants.

PARDEE, J. In 1848, Oran Sherwood, of Fairfield, died intestate, leaving real estate, a widow, and four children. Of these last was Franklin Sherwood, the plaintiff. On March 1, 1856, he conveyed his undistributed interest in his father's estate to his mother, saying in his deed that he intended "to convey my entire undivided title and interest in and to all the estate of my father, the said Oran Sherwood, late deceased, within said tract of land, as heir at law of my said father therein." This conveyance was made for the purpose of concealing the property from his creditors. On June 16, 1856, distribution was made. On March 19, 1883, his mother, desiring and intending to reconvey to him precisely what he had conveyed to her, executed and delivered a deed to his wife, for his benefit, in which she described the property as follows, viz.: "All the real estate of Oran Sherwood, deceased, which was distributed to Franklin Sherwood in the distribution of said estate, and afterwards conveyed to me by said Franklin Sherwood by sundry deeds, as recorded in Fairfield land records." In point of fact, Franklin Sherwood had conveyed to her before, not after, distribution. Mrs. Sherwood, the grantor, is dead. Franklin Sherwood asks, in effect, that her heirs at law may be compelled to execute a corrected deed. They resist, and insist that, inasmuch as he conveyed the land to his mother for a fraudulent purpose, equity will leave him where he placed himself. If we should concede that if Mrs. Sherwood had refused to reconvey the land to her son, the court would not come to his relief, this case would not be disposed of. She made a conveyance. If that is legally sufficient in form, the plaintiff's title is unassailable; and, for the purpose of determining the question as to its sufficiency in form, the tests, and only those, are to be applied which would be applied to a deed executed upon a valuable consideration. Every concession which would be made in behalf of the latter is to be made in behalf of the former. And, if the deed had been made to a purchaser for full and valuable consideration, we think the heirs of the grantor could not obtain the assistance of any court in an effort to inherit both the consideration and the property. There is and can be no doubt or question as to the identity or location of the piece of land in which Franklin Sherwood had an interest. In his deed to his mother he gave the boundaries and contents. He stated that there had been no distribution, plainly implying that there would be. Such distribution was made and recorded. By this his part was set to him by metes and bounds; and the mother in her reconveyance declares that she intends to restore to him precisely that which be conveyed to her, and refers to the recorded distribution, where it is described to a certainty in every particular. Having received absolute certainty by giving metes and bounds and quantity, and naming visible monuments, by way of supererogation the grantor undertakes to mention a certain event in the history of the title to that land, and mistakenly states that it occurred before the conveyance to herself, when in fact it occurred after. The mention affects no metes or bounds or monuments; no courses or distances; no doubt as to identity is raised. Every person reading it had either actual or constructive notice of the mistake in stating the order of those events; for both distribution and deeds were upon the public records, and declared that order. There is no finding that any person has acquired any right or interest in or title to the premises by conveyance from either Oran Sherwood or his mother, or by adverse occupation, which conflict with the plaintiff's claim of ownership. As a matter of law, as a rule of construction, this needless and erroneous mention of an incident in the history of the title to a piece of land is to be held to have no force as against the mention of metes, bounds, courses, distances, and visible monuments, when the question is whether the deed is sufficient as to form to convey the land intended. It is the duty of courts to uphold rather than to destroy deeds. It is the fundamental canon of interpretation of contracts to discover and give effect to the intention of the parties. In the case before us the finding makes it certain that the mother intended to reconvey to her son precisely that interest in his father's estate which he had conveyed to her before distribution. When a piece of land is so described that a surveyor's chain can be stretched along its boundaries with absolute certainty as to each course, distance, and monuments, a transposition of dates in stating previous conveyances constituting the chain of title will not cloud or affect that certainty, nor destroy the operative force of a conveyance. We cite a few of the many instances given in the reports when courts, in the discharge of their duty to find and carry out the intent, have declared that certain words of description in deeds are to be of no effect which apparently are far more likely to give rise to a doubt as to identity than is the erroneous word in the deed before us.

In Worthington v. Hylyer, 4 Mass. 196, the words of description are: "All that farm of land in said Worthington on which I now dwell, being lot No. 17, in the First division." The land demanded in that action was not included in lot No. 17, yet the court held that it passed; the first being sufficient to ascertain the estate intended to be conveyed, and that the additional description inconsistent with the former was to be rejected, because, if it were to be considered as an essential part of the description, the deed would be void for repugnancy.

In Cate v. Thayer, 3 Greenl. 71, the question was as to one of the lines of the town of Dresden, which was described as a course "north north-east, including the whole of Gardner's farm;" and the court held that the whole farm was included, although intersected by a line running north north-east, because the farm was to be considered as a monument.

In Keith v. Reynolds, 3 Greenl. 393, the description was, "A certain tract of land or farm in Winslow, including in the tract which was granted to Ez. Potter," and afterwards there was added a particular description by course...