Swan v. New England Mortgage & Security Co

• Decision Date: 16 May 1898
• Citation: 23 So. 627,75 Miss. 907
• Parties: DAVID J. SWAN v. NEW ENGLAND MORTGAGE & SECURITY CO
• Court: Mississippi Supreme Court

23 So. 627

75 Miss. 907

DAVID J. SWAN v. NEW ENGLAND MORTGAGE & SECURITY CO

Supreme Court of Mississippi

May 16, 1898

March 1898

FROM the chancery court of Monroe county HON. BAXTER MCFARLAND Chancellor.

The opinion states the controlling facts in the case.

Decree reversed and cause remanded.

Stovall & Williams, for appellant.

In the case of Bowers v. Chambers, 53 Miss. 267, it was held that the description, "14 acres off the N. E corner, E. 1/2, S. E. 1/4, section 20, " etc., was sufficiently certain. It would have been just as certain and definite if the description had said: "N. E. corner, E 1/2, S. E. 1/4, section 20, " etc., containing fourteen acres. It simply means that in the northeast corner of the east half, etc., there are conveyed fourteen acres of land lying in a square. If the description had been fourteen acres, more or less, it would have been void, because uncertain on its face as to how much was intended to be conveyed. Now, the only thing in the present case which renders the description different from the description in the case of Bowers v. Chambers, supra, is the use of the word "fractional, " and it is contended that this word renders the whole description uncertain and void. There is a rule in the construction of deeds which is maintained by all the authorities, that some effect will, if possible, be given to the instrument, for it will not be intended that the parties meant it for a nullity. Devlin on Deeds, sec. 1040. A corner is not a square. It is merely a base point from which a start is made to construct a square of sufficient size to include the quantity of land conveyed. When land is conveyed in a certain corner it is always laid off in the form of a square, as the law directs. If a corner had a tangible, fixed and certain existence, like an apple, a house or a quarter section of land, there could then be such a thing as a fractional part of it, but it has no such existence; it is merely a base point given a definite character by the law, from which a given quantity of land may be measured. A corner has no certain size and fixed dimensions so as to be susceptible of division into parts. The word "fractional, " then, in the description, cannot modify corner. Now, the question is, if it does not modify the word "corner, " what does it modify? What meaning has it in the sentence? Assuming that it cannot modify anything else in the sentence, then it must be treated as surplusage, for the balance of the description, "N. W. corner of S.W. 1/4, containing 32 acres, " is sufficiently certain to enable the land conveyed to be identified, and the rule that some effect will, if possible, be given to the instrument, must always be applied. We don't think, however, that the word "fractional" in the description is surplusage, but that it has some meaning. We could say, with good reason, that it is used in a general sense, and in a general term of description, implying that not the whole, but only a part of a legal subdivision, is conveyed. We think, however, there is no doubt that the word "fractional, " as used in this description, modifies section 6. The description, "fractional N.W. corner of S.W. 1/4, section 6, " etc., is equivalent to "N. W. corner of S.W. 1/4 of fractional section 6, " etc. Selden v. Coffee, 55 Miss. 41.

Gilleylen & Leftwich, for the appellee.

If the word "fractional" was omitted from the description, it would be good. Bowen v. Chambers, 53 Miss. 259. What effect, then, must the word "fractional" have on the description? The question here is one of ambiguitas patens, which cannot be helped by averment or by showing what the parties intended. 1 Greenleaf on Evidence, sec. 297; 2 Minor's Institutes, p. 1071. Our court has, by judicial construction, laid it down as a rule that when any given number of acres of land is located in the corner of any section or subdivision of a section--that is, so many acres pure and simple in a corner--means a square. So, that by ascertaining the number of square rods in the given number of acres and extracting the square root of same, we will get one side of the square, in fact, all four sides of the square, for they are all equal; so that it becomes a matter of simple mathematical calculation, for the location of this land is fixed in the corner of a right angled triangle. The judicial mind forms a geometrical concept and sees the land in square form, with the lines drawn in the corner, before the surveyor's chain is laid down. But if the angles were shown to be other than a right angle--if the description intimated any irregularity in the piece of land, whereby it was seen beforehand, by inspecting the deed, that the square was not a square-if such a paradoxical statement is permissible, then the key of the measurement would be gone, and the description must fail for indefiniteness, and the surveyor would have no criterion when he should go to lay off the land. Let us see, then, what the word "fractional" means. It is from the Latin "frango, " which means "I break." It is one of those words that has not only retained its etymological meaning, but it has been judicially construed in its application to land, and has a fixed and definite meaning, and cannot be discarded as surplusage. Seldon v. Coffee, 55 Miss. 41.

"The fractional northwest corner, containing 33 acres, " that is, the imperfect square [another paradox] in the northwest corner, the broken northwest corner, the irregular northwest corner. It is at once seen that the judge on the bench construing the language and grasping at the mental concept, a priori, is thwarted at the threshold. If the square is broken, if a piece of it...