Opinion
Argued October 24, 1884
Decided November 25, 1884
H.V. Howland for appellant. Merritt King for respondent.
The question argued on this appeal is whether a certain mortgage dated August 4, 1859, made by one Andrew Myers to Abel Storms, was incapable of taking effect and void by reason of vagueness and uncertainty in the description of the mortgaged premises. In answering it, we are to regard the rule that a deed should never be held void when the words may be applied to any intent to make it good, and to that end they are to be taken most strongly against the grantor, for he should not be allowed to say a description framed by himself was so indefinite that, upon an enforcement of the mortgage, no title to the property could be acquired. (4 Com. Dig. tit. Fait; 4 Cruise, 203, § 13; Jackson v. Gardner, 8 Johns. 394.) It is enough, therefore, if, by any particulars in the description, the thing granted can be sufficiently ascertained, to enable the court to say that the words chosen by the parties were intended to relate to it; and for that purpose we may go beyond the face of the deed if it refers to some subject-matter in respect to which we can locate and apply the description. ( Coleman v. Manhattan Beach Imp. Co., 94 N.Y. 229. )
In the case at bar the mortgage recites a consideration of $5,368, and, besides premises of no importance in this controversy describes "a certain other piece or parcel of land lying and being situated in the county of Tompkins, being part of lot No. 86 in Lansing aforesaid, bounded as follows, viz.:
"Beginning 39 rods west from the north-east corner of said lot, running thence south 33 rods; thence west 136 rods; thence south, 15 degrees west, 79 rods to the Cayuga lake shore; thence along the lake west, 12 degrees south, 32 rods; thence west, 35 degrees north, 40 rods; thence west, 5 degrees south, 77 rods; thence north, 10 degrees west, 12 rods; thence 6 degrees east of north, 81 rods; thence east 42 rods; thence north 8 rods; thence east 242 rods to the place of beginning, containing 133 acres of land, the same more or less. The intention of this last-mentioned piece of land is to mortgage 46 acres of land on the south side of it next to Mr. Norton's to secure a part of the above consideration."
There is here a clear designation of the county, town, and lot where the mortgaged premises may be found, of the quantity to be mortgaged, and a specific location of the same as "on the south side of it next to Mr. Norton's." It is established that the forty-six acres which the relator claims under the mortgage answers the call as to county, town, and lot. It is part of lot 86. It is conceded that it is no part of the one hundred and thirty-three acres embraced within the specific boundaries, and the interpretation which supposes that piece to have been in the minds of the parties when pointing out the property mortgaged, is not satisfactory. That description would seem to have been put into the deed by mistake. I should rather say that the words "the last mentioned piece of land" referred to "that other piece or parcel" intended to be conveyed, so that the word "it" related to the lot as a whole, and the qualifying words which express intention should be read as if they said, "the intention is to mortgage forty-six acres of land on the south side of it" (lot 86) "next to Mr. Norton's." If so, we are to look for a piece of land in the county, town, and lot before mentioned, which shall be on the south side of that lot, lie next to Mr. Norton's and contain forty-six acres.
Norton's line is established. The evidence shows that the land claimed by the relator is next to it, and is on the south side of lot 86. This seems to be quite enough, and the evidence of the surveyors (two called by the relator and one by the defendant) shows that in fact there has been no difficulty in laying out from premises owned by the mortgagor, at the time of the execution of the mortgage, a piece of land answering in all respects this description. There is certainty in Norton's line and in the location of lot 86. The surveyors made Norton's north line the south line of the mortgaged premises, the shore of the lake, the western boundary, the east line of the mortgagor's land, the east line of the land mortgaged, and drawing a line on the north so far distant from Norton's line as to include forty-six acres, made that line its northern boundary. This gives a compact and well-proportioned lot, with boundaries natural and artificial, and such as may well be deemed to have been in contemplation of the parties at the time of the execution of the mortgage. We think there can be no more doubt upon such a description, applied by evidence of the location of lot 86 and of Norton's line, as to what property was intended, than if it had been described by metes and bounds. There was no other land of the mortgagor on which the conveyance could operate. He had no other "next to Norton's." In such a case the maxim ut res magis valeat quam pereat applies. It is not easy to find two cases alike, but the principle upon which many have been decided applies here, and I know of no exception to the general rule which requires the court to make a deed effective, if, from the description given, the premises sought to be conveyed can be located with reasonable certainty. Here the description is in some respects inartificial and imperfect, but the intention of the parties is more apparent than in numerous cases cited by the learned counsel for the appellant, where the courts have given effect to instruments objected to for like reasons.
Nor does the respondent show any authority for a different conclusion in this case. It is true that another view of the terms of the deed has been taken. It supposes that the word "it" refers to the tract of one hundred and thirty-three acres, embraced in the particular description, and requires that the mortgaged premises should not only lie on the south side of that parcel, but adjoining it, and as by no measurement it could then be next to Norton's, it is argued that no effect can be given to the conveyance. This appears to be a very unnatural construction. It gives to the language of the parties an accuracy of statement in the use of the word "on" not warranted by their other words. It may be satisfied by construing it, as "lying south of," and as we are to find, if possible, a position which shall place the premises next to Norton's and also in some relation to the one hundred and thirty-three acres, we are bound to give it that meaning. Thus the forty-six acres are next to Norton's and south from the other parcel. But if the two phrases cannot be reconciled, that one should be rejected which defeats the mortgage. To hold otherwise we must exclude the rule which requires even the proper and exact signification of words and sentences to be disregarded when a close adherence to it would prevent the intention of the parties from taking effect ( French v. Carhart, 1 N.Y. 102), and that other rule which requires us to select among conflicting descriptions, one which is most certain, and to reject inconsistent or mistaken particulars, when by those which remain the thing intended to be granted can be ascertained. ( Jackson v. Marsh, 6 Cow. 281; Same v. Loomis, 18 Johns. 81; Loomis v. McNaughton, 19 id. 448; Fish v. Hubbard, 21 Wend. 652.) So whether these principles are applied, or regard had only to the description which places the mortgaged premises "next to Norton's," we think the learned county judge did not err in giving effect to the mortgage, or in holding that the mortgaged premises were well located by means of the description contained in it.
It follows that the judgments of the General and Special Terms should be reversed, and the judgment of the county judge of Tompkins county affirmed.
All concur, except FINCH, J., not voting.
Judgment accordingly.