March Term, 1865
A.G. Rice, for the appellants.
J.L. Talcott, for the respondent.
The deed from Joshua Pettit, the ancestor of the plaintiffs, to Gustavus Grimard, from whom defendant derives title, describes the land as "all that certain piece or parcel of land situate in the said town of Niagara, being the west part of lot No. 76, lying on the easterly side of Niagara river, containing eighty-five acres, be the same more or less." This description is vague and uncertain. The land is a part of lot No. 76, in the town of Niagara. Whether the whole township was divided into lots and lot 76 was one of the divisions, might be an inquiry arising out of this description. We know, however, from the description in the patent to James Emmott, that this lot of land was a part of the unappropriated lands of the State, lying on the easterly side of the Niagara river, and was known and designated as lot No. 76, in the field book and on the map of such lands, filed in the office of the secretary of State. In the deed the lot is referred to as if it were a well known tract, piece or division of land; part or division of a larger parcel or tract, that is well known to the parties, the seller and the purchaser. The particular piece or portion is designated, also, as a well known part or division. The description in the deed is very uncertain and indefinite, but the intent of the seller is very manifest. He conveyed the west part of the lot; not the west quarter, or third, or half; not eighty-five acres to be taken from the west part, but the west part itself, whatever that might be in acres; eighty-five acres more or less. In a previous deed, this same grantor had conveyed ninety acres, part of the lot. There had not then, so far as appears, been any division of lot No. 76. That ninety acres was carefully bounded on three sides by the lines of the lot, and on the other side by a line to be drawn parallel to the east line, and so far distant as to include exactly ninety acres. That ninety acres was doubtless known as the east part of the lot. It was supposed to be more than the half of the lot, as at that time it was understood, in accordance with the original State survey, that the whole lot contained only one hundred and seventy-five acres. Looking at the description in the deed to Grimard, by the light of surrounding circumstances, there hardly can be a doubt as to the intention of Joshua Pettit, when he executed that deed, to convey all the residue and remainder of the lot, and that was what was understood and intended by the designation "the west part of lot No. 76." It was said by Mr. Justice BEARDSLEY, in Hathaway v. Powers (6 Hill, 455), "the doubt is as to the tract or parcel, not as to its size, and that portion of the description which mentions the number of acres, affords no aid whatever in ascertaining the particular piece of land intended." "The number of acres named gives no aid on the point of identity, and can only be regarded as an attempted designation of quantity, which turns out to be erroneous." The mortgage to the Porters, and the testimony of Grimard, however, become material and important as to the intention of the grantor and the identity of the premises. The evidence was not given to vary or contradict the deed, but to identify the subject matter, and to show what the grantor intended by "the west half of lot No. 76." In this view, the evidence was rightly admitted. It tended to show the location and boundaries of the piece of land which the grantor intended to convey and did convey by the description or rather the designation, "the west half of lot No. 76."
This evidence having been admitted, the question necessarily arose and was properly submitted to the jury, whether the deed to Grimard, conveying the west part of lot No. 76, did not convey all the land in lot 76, lying west of the ninety acres, sold by Joshua Pettit to Anguish. That was a question of fact arising upon the evidence.
I think this judgment should be affirmed, in which opinion all the judges concurred.
Judgment of the Supreme Court affirmed.