18 DOE, EX DEM., PHILLIPS 2 HEIRS V. BENJ. A. PORTER ET AL [3 DOE, E X DEM., PHILLIPS' HEIRS against BENJAMIN A. OPRTER, ET AL.
APPEAL from. Phillips Circuit Court. All deeds are to be construed favorably, and as near the intention of the parties as possible, consistently with the rules of law. The construction ought to be put on the entire deed, and every part of 'it, for the whole deed ought to stand together, if practicable, and every sentence and word of it be made to operate and take effect. If two clauses in a deed stand in irreconcilable contradiction to each other, the first clause shall prevail, and the latter be regarded as inoperative; and the law will construe that part of a deed to precede which ought to take pre-cedence, no matter in what part of the instrument it may be found. All deeds shall be taken most strongly against the grantor. If,, in a conveyance', the grantor fails to describe the thing intended , to be granted, with sufficient certainty to ascertain its identity, the grantee takes' nothing, by reason of. the uncertainty of the grant. The most general and usual terms of description employed in deeds, to ascertain the thing granted, are, first, quantity : second, course and distance: and third, artificial or natural objects and monuments. And, whenever a question arises as to the description, the terms or objects most certain' and material will govern. Therefore, quantity yields to" course and distance; and course and distance, to artificial and natural objects. If in a conveyance there are certain particulars once sufficiently ascertained, which designate the thing intended to be granted, the addition of a circum-stance, false or mistaken, will not frustrate the grant. . But when the description of the estate intended to be conveyed includes several particulars, all of which are necessary to ascertain the estate to be con-veyed, no estate will pass except such as agrees to every part of the de-scription. Where there is error in the pricipa/ description of the thing intended to be granted, though there be no error in the addition, nothing will pass. When lands are first described generally, and afterwards a particular description is added, that will restrain and limit the general description. .And where'a deed conveys "a tract of land containing three hundred and sixty-six acres, being part of a six hundred and forty acre tract, &c., which said tract of land was conveyed by W. R. to S. P. by deed, bearing date," &c., the land conveyed is the same land conveyed in the deed so referred to, lhough it contain less than three hundred and sixty-six acres. In the case quantity yields to boundary—and the particular description prevails over the general; and a separate f raction of the 640 acre tract does not pass, although it would make up 366 acres. The grantor and grantee, and all claiming under them, are bound by the recital of. the prior deed; and that recital definitely fixes and ascertains the precise quantity of land conveyed.
Absent, DICKINSON, Judge.
This was an action of ejectment, brought by the heirs of Sylvanus Phillips for the recovery of a parcel or fraction of land containing three acres and eighty-two hundredths, as its quantity is stated in
ARK.] DOE, EX DEM., PHILLIPS HEIRS v. BENJ. A. PORTER ET AL 19 the declaration ; but which, owing to the abrasion , of the Mississippi river, had been reduced, as shown by the plat, to three acres and. seventy-one hundredths of an acre. The case was submitted to a jury on the general issne.; and the facts.and evidence in the case were agreed upon, and stated in writing, by the counsel for the parties; of which agreed case, a plat was a part, which mnst be referred to, in order fully to understand die facts, arguments, and decision. The facts agreed upon were as follows: The tract or fraction sued for of 3.82 or 3.71 acres, is part of a tract of 640 acres, origi- . nally patented to William Rnssell, as assignee of Patrick Cassidy. The tract of six hundred and forty acres lies on the Mississippi river, is irregular in its shape, and is correctly delineated in the annexed plat, on which the fraction sued for is marked C.
NO RTB • Wm. Kussell, Assignee of Pat. ,Cassidy; 640
acres. Town of Helena. In the town 213.59.
20 DOE, EX DEM., PHILLIPS 7 HEIRS V. BENJ. A. PORTER ET AL [3 By agreement between Russell and Sylvanus Phillips, the ancestor of the plaintiffs, made prior to 1820, about 275 acres of the tract were to be laid off to constitute the town of Helena ; and 273.59 acres were actually by them laid off as said town, as repre-. sented in the plat, not including the three fractions A. B. and C. By deed dated ])ec. 3, 1821, Russell conveyed to Phillips fraction A., containing 18 acres. By deed of July 13, 1825, acknowledged August 13, 1825, Russell conveyed to Phillips, among other lots and tracts of land, the same fraction of 18 acres, 335 lots in the town, and the 340 acres, the western part of the tract. And by deed of August 1, 1825, also acknowledged August 13, 1825, Russell conveyed to Phillips sundry lots in the town, and also fraction C., in controversy. By deed dated October 1, 1830, Phillips conveyed to Austin Kendrick and Arnold Fisher, (through whom the defendants claimed,) a vast number of lots in the town, and tracts of land situated in different places ; And among others, according to the language of the deed, "one other tract containing three hundred and sixty-six acres of land, being part of a six hundred and forty acre tract originally owned by Patrick Cassidy, and confirmed to William Russell under Patrick Cassidy, and patented by the President of the United States to Williath Russell under Patrick Cassidy, and to his heirs, by patent, recorded in the General Land Office, volume 4, pages 243, 244, and dated the 26th day of March, 1824, which said tract of land was conveyed by Williarn Russell to Slyvanus Phillips, by deed bearing date the 13th of July, 1825, situate in the County of Phillips and Territory of Arkansas, adjacent to the town of Helena." By deed of August 22, 1831, Kendrick and Fisher conveyed fraction C. to.Porter, the defendant. All these deeds were admitted in evidence. It was 'admitted that the land in controversy was fraction C., and correctly described in the declaration ; that the plaintiffs were the sole heirs of Phillips ; that Phillips had full title to the land in controversy on the 1st of October, 1830 ; and it was agreed that if the jury should find upon a proper construction cf the deed of October 1, 1830, fraction C. was included in the 366 acres conveyed by that deed, taking that deed in connection with
ARK.] DOE, Ex DEM., PHILLIPS 2 HEIRS v. BENJ. A. PORTER ET AL 21 all the other deeds referred to, and in connection also with the fact that all the western part of the tract, containing 340 acres, with the three fractions A., B., and C., (all of which, were on the 1st of October, 1830, owned by Phillips,) made up the 'quantity of 366.82 ; then they would find for the defendants : but that if they found, taking all those matters in connection, that fraction C. was not so included, they would find for the plaintiff. Various instructions were given and refused , which it is unnecessary to notice, further than to say, that they declared the construction of the deed to be as contended for by the defendants. The jury found for the defendants. The plaintiffs then moved for a new trial ; and their motion being overruled, they appealed.
TRAPNALL & COOKE, for plaintiff in error. The universally acknowledged rule, in the construction of a deed, is, that it mu*st be as near to the minds and apparent intention of the parties as may be. Every deed shall inure as much as may be according to the intention of the parties. Jackson vs. Clark, 7 J. R. 223. The intention of Phillips must be inferred from the language used to expres it. The direct and special reference to the deed of the 13th July, as embracing the identical tract intended to be conveyed, shows conclusively that the land acquired by that deed, and that alone, formed the subject matter of the grant on'the trust deed. If it had been the intention of Phillips to convey his entire in-terest, remaining of the 640 acres, would he have made this pointed and emphatic reference to the deed of the 13th of July ? He well knew there were two fractions not embraced by that deed, but to. which he had acquired title by a subsequent deed, bearing date the first of August, 1825 ; and is not the inference, under this state of facts, irresistible, that Phillips did not intend to include, in the trust deed, the two fractions to which he acquired title by the deed of the 1st of August—that he meant to convey only the land comprehended by the deed of the 13th of July ? The principle is well settled, that, Where one deed refers to another, as that by which the grantor derived title to the land conveyed to the grantee, the deed. so referred to will be regarded as a material feature in the descrip-
22 DoE, EX DEM., Plumps 7 HEIRS /;. BENJ. A. PORTER ET AL [3 tion, and will be looked to to clear lip any obscurity or micertainty which may exist in many other parts of the description. Jackson .es . Ranson, 18 1. .R. 107 ; Jackson vs. Moore, 6 Cowen 721, note. Where a purchaser cannot make out a title but by a deed which leads him to a fact material, he will not be deemed a purchaser -without notice of that fact. • Johnson vs. Gwathmey, 4 Lit. 317; Ward vs. Trotter, 2 Monroe 4; Cuyler vs. Bradt, 2 Caines 327. General expression in a deed of "all estate, real, personal and mixed," may be'restrained by a schednle, to which reference is made ; Scott vs. Coleman, 5 Lit. 353. The recital of an agreement in a deed is, in law, equivalent to an agreement made by the deed. Bank of Kentucky vs.. Vance's A dmr's, 4 Lit. 172. Recitals . in a deed of land are evidence against the party making them, or any person claiming under him. They estop parties and privies in blood and estate, and in law. A person entering into possession of land, under a party thus bound by a recital, is 'a privy, in law, of-such party, and is bound by whatever would conclude or affect him. Jackson vs Parkhurst and Guerney, 9 Wend. 209; 2 P. W'ms, Annandale vs. Harris, 434; Ford vs. Grey, 1 Salk. 286; Carver vs. Jackson, 4 Peters; in which the effect of recitals in a deed is fully examined, and in which the conrt declare that the recital constitutes a part oT the title, that it works upon the interest in the land, and creates an estoppel which runs with the land against all persons in privity with the grintor. ,It is as much a muniment of the title as any covenant therein, running with the land. Kendrick and Fisher, and all those who claim under them, are presmned, in law, to have a knowledge of the deed of the 13th of July; its con-tents, and the identical lands therein embraced for the very deed ander which they derive title, expressly refers to it, and declares that the tract of land, therein conveyed, is the same to which Phillips acquired title from Russell, by virtue of that deed. The recital deed is a part of the muniments of their title, and defines and marks out the particular tract intended to be conveyed by the gran-tor. Knowing, then, as the defendants, in law, are presnmed to do, the contents of this deed, and the exact locality and boundary of the lands therein embraced, with what pretence of justice or legal right can they now claim lands not included in that deed, and to
ARK.] DOE, EX DEM., PHILLIPS ' HEIRS V. BENJ• A. PORTER ET AL 23 which 'Phillips acquired title by other deeds of a subsequent date ? The fact that the trust deed calls for a greater number of acres' than is contained in the deed of the 13th of July, will not give to the defendants a right to make up the deficiency out of the lands embraced in the deed of the 1st of August, and which are not referred to or embraced in the trust deed. It was not the intention of the deed of the 1st of October, 1830, to convey a precise and definite number of acres, but a certain tract of land. The deed expressly states the thing to be conveyed to be "one Other tract." The tract, then, is the subject matter of the conveyance, and the number of acres, the prior conveyances, patent and deed referred to, are all descriptive circum-stances, inserted to identify the tract and define its boundaries and location. The rule of construction, sanctioned alike by authority and common sense, is, that where there is a contradiction in the de-scription, we ought to take that which is the most stable and certain. Jackson vs. Loomis, 18 J. R. 87. If there are certain particulars once sufficiently ascertained which designate the thing intended to be granted, the addition of a circumstance, false or mistaken, will not frustrate the grant. Idem 85 ; Jackson vs. Clark, 7 J. R. 223 ; Loomis vs. Jackson, 19 J. R. 449 ; Worthington, et al., ex'rs, vs. Hylyer, et al., 4 Mass. 205.
Where lands are first described generally, and afterwards a particular description is added, that shall restrain the general words. 4 Com. Dig., Fait, E. 4, p. 289, note b. A thing certain may be di-minished, though not wholly made void. Stulceley vs. Butler, Hob. 171 b... To what parts of this description, then, are we to look for those features which give most stability and certainty to the grant, and best illustrate the intention of the parties ? To the description by quantity, or that contained in the reference to the deed of July the 13th. Keeping in view the important rule, that those features of the description which mark out and define with most certainty and particularity the land conveyed, will always be preferred to those of a more general and indefinite character, can the court entertain a moment's doubt as to which shall be preferred and which rejected ? By reference to the deed of the 13th of July, such descriptions are given of the tract as leave no doubt of its identity
:24 DOE, EX DEM., PHILLIPS HEIRS v. BENJ. A. PORTER ET AL [3 and boundary. The deed of the first of October reciting the deed of the 13th of July, and declaring that the tract which the grantor was conveying is the iTery same to which he derived title by that deed, will have the same effect as if the calls and deseriptions of the recited deed had been inserted verbatim in the trust deed of October. We have, then, in support of the position, that the fraction in controversy wag not conveyed by the trust deed, all the weight and force that a certain and definite description of the land c an impart. For. the rule id ' certwn est qund certum reddi potest will' here apply, and we have also the futther advantage, that the description for which we contend is true, that the lands in the deed of the 13th of July ai .e the same embraced in the patent; it is,' .hOwever, false that they contain three hundred and sixty-six acres. All the authorities concur in regarding the description by the number of acres as the lowest kind of description In Jackson vs. Bar--ringer, 15 J. R. 472, the court say, "it is a well settled rule, that hen a piece of land is conveyed by metes and hounds, or any other .certain description, this will control the quantity, although not correctly stated in the deed." Jackson vs. Wilkinson, 17 J. R. 147; Powell vs. Clark, 5 Mass. 357. When the quantity is mentioned in addition to the description of the boundaries or other certain designation of the land, without an express covenant that it contains that quantity, the whole is considered as mere description. The quantity being the least certain part of the description must yield to the boundaries or number, if they do not agree. In con.- struing deecN, effect is to be given to every part of the description, if practicable ; but if the thing, intended to be granted, appears .clearly and satisfactorily from any part of the description, and other circunistances of description are mentioned which are not applicable to that thing, the grant will not be defeated, but those circumstances will be rejected as false or mistaken. What is most material and most certain in a description, shall prevail over that which is less material and less certain. Jackson vs. Moore, 6 Cowen 117. The enumeration of quantity is not of the essence of the con-. tract, it is merely matter of description. Mann and Toles vs. Pier-:son, 2 J. R. 40. The description by quantity, must, from its' very 'nature, be vague and indefinite, and unless taken in connection
ARK.] DOE, EX DE NI., PHILLIPS 7 HEIRS v. BENJ• A. PORTER ET AL 25. with other circumstances of the description fixing the locality of the land, it can, of itself, sscertain nothing. And in a case already cited, the learned Judge, in conclusion, says, "I will only add, that in my own experience, and I may say with propriety, in the universal opinion of conveyancers, enumeration of quantity, after a description of the subject, is superfluous and immaterial, and in every view only matter of description." But it may be said that the fact of the quantity of acres being first mentioned in the de-scription, gives to that circumstance a controlling influence ; but the court will remark that the whole clause is one continuous sen-tence, and it is not material what circumstance is first mentioned, for the intention of the parties is to be collected from the whole, and not from any one particular. In Doughty's case, referred to in Stulceley vs. Butler, Hba,rt 171, the Duke of Northumberland was seized of divers houses and cottages in the parish of Saint Sepulchres London, and bargained and sold all his tenements in the parish of St. Andrews, Holborn, in the tenure of William Gardiner, unto Lou Lea, and the grant was judged void, though the houses were in the tenure of Gardiner ; it was added, in that case, that the court was of opinion that if he had begun with the tenure of Gardi-ner, which was true, and ended with the parish mistaken, that the grant had been good by the rule, utile per inutile non vitiatur. "I hold it," says the learned Judge in reviewing that case, "plain to the cOntrary, for the several circumstances and descriptions circumscribe and ascertain the grant ; and it is a good rule, incivile est, nisi tota sententia perspecta, de aliqua parte judicare ;" which opinion was fully sustained in Doddington's case, to which reference is also made, and in which it was adjudged that the first part of the description' as it was placed in the patent, was true, yet the latter part being false marred all, even if it were the grant of a common person ; and the Judge very truly remarks that, in one sentence it is vain to imagine one part before another ; for though words can neither be spoken or written at once, ye .t the mind of the author comprehends them at once, which gives vitam et modum to the sen-tence. It makes no difference, therefore, in what part of the sentence the quality of acres is mentioned, so that it be inserted as matter of description, and it is always so regarded (as will be seen
26 DoE, EX DEM., PHILLIPS 2 HETRS v. BENJ. A. PORTER ET AL [3 in the cases above cited,) unless there are direct and express covenants to convey a particular quantity.
No peculiar force, therefore, is to be given to the number of acres because of its position in the sentence. No matter where it may appear as n circumstance of description, it will be 'subject to the same rules before adverted to ; and that which is most material and .most certain in the description, will take precedence in the construction of the deed, although it may appear after in the sentence. The important and material point of enquiry is not to ascertain the quantity in the tract, but to ascertain and identify the tract itself. The quantity is descriptive of the tract, and not the tract of the quanti-ty. If there is any thing in the deed of the 1st of October which manifestly indicates that it was the intention of Phillips to convey only the fraction A, and the 340 acres west of the town of Helena; then, although the deed may call for a greater number of acres nothing more will pass. And that such was his intention is abundantly evident from the fact of his referring to the deed of the 13th of July, in which those parcels were.conveyed to him. In a note to the case of Jackson vs. Moore, 6 Cowen 720, already referred to, it is stated, "when a man has a manor called A, extending into the several parishes of B and C, and he .grants all his manor in the par-. ish of B, the words, 'in the parish of B' would be restrictive, and so much of the manor as is situate in the parish of B would pass." Now Phillips has several fractions or parcels of land in the 640 tract patented to Russell, to which he acquired title by two deeds, one bearing date of the 13th of July, and the other the first of Au-guest, 1S25 ; and he conveys one tract, part of the 640 acre tract, patented to Russell, which said tract he expressly states to be the same conveyed to hint by Russell, by deed bearing date the 13th of July. Can the court doubt but these latter are words of restriction and does it not present .a state of facts strikingly analogous to the precedent above quoted ? • In the same note it is farther stated, when there is a grant of all lands which were of the inheritance of A B, and conveyed fo C D, the lands will not pass unless they were conveyed by C D, and also were the inheritance of A B. And so we contend that no lands pass by the clause of the trust deed under
ARK.] DOE, EX DEM., PHILLIPS ' HEIRS V. BENJ, A. PORTER ET AL 27 consideration, unless they were cOntained in the 640 acres patented to-William Russell, and also included in the deed, of the 13th July, from Russell to Phillips. It is evident that the reference to this last deed was inserted to repel the idea that the fractions acquired by the deed of August, were included in the trust deed ; no other consistent and rational construction could be put upon it. The description by number of acres does not correctly describe the several tracts included in the trust deed even according to the construction of the defendants, for these tracts together make up.the quantity of 266.82 acns, and the deed calls for only 366. And if, according to the view we take of it, the deed conveys a specific number of acres, and not a ceitain tract, then they can claim no more that the exact number of acres mentioned in the deed. And so large a fraction as 82-100 of an acre, situated in what is now nearly the heart of the town of Helena, is worth a large sum of money ; and to this, if the conveyance is for a specific number of acres, ihe heirs of Phillips are clearly entitled ; but here we are met at the very threshold with the difficulty of determining this ; ant of whieu .one of these several fractions shall this 82-100 acre be stricken off ? And even could we fix upon the parcel there is the*further difficulty of determining from which side of the parcel this small fraction shall be taken. In this view of it the deed would be uncertain and vague ; and the •ourt should incline to that descriptietn which would define and mark out the object of the grant with precision • and certainty.
PIKE, Contra. Of the several rules laid down as governing in the construction of deeds, there are two which need to be applied in this case, and bear directly upon the question presented to the court. 1st. All deeds shall be construed as near the apparent intention : .f the parties as possible, consistent with the rules of law.
2d. If there be room for two constructions, that shall be taken which makes most strongly against the grantor. See as to the first rule, Bridge vs. Wellingtön, 1 Mass. 219 ; Worthington, et al., vs. Hylyer, et al., 4 Mass. 20.5; Bott vs. Burrell, 11 Mass. 163 ; Hatch vs. Dwight, 17 Mass. 289 ; Ludlow t).;. M;yer,
28 DOE, EX DEM., PHILLIPS' HEIRS v. nENJ. A. PORTER ET AL [3 J. R. 383 ; Troop vs. Blodget,16 J. R. 172 ; Cholmondeley vs. Clinton, 2 Ba. A. 625. As to the second, Troupe vs. Blodget, 16 J; R. .172 ; Adams vs. Frothingham, 3 Mass. 352; Watson vs. Boylston, 5 Mass. 411. The principle is admitted, that "the description of land in a deed by specific boundaries is conclusive as to the quantity ; and if the quantity be expressed as a part of the description, and is incorrectly stated, it will be inoperative : and it is immaterial whether the quantity contained within the specified boundaries is greater or less than the quantity expressed." But as the appellants rely almost exclusively upon this principle, it will be necesiarr to examine some of the cases in which it is laid down ; and so ascertain whether it is applicable in the present instance. In Powell vs. Clark, 5 Mass. 355, PARSONS, C. X., 'said that "each tract is definitely limited, and any surveyor could easily ascertain its contents, and the plaintiff might have known the quantity of land contained within the limits described, before the concluded his purchase, by taking the Proper measures. In his purchase he must be considered as relying on the boundaries described, and not on the contents mentioned. In a conveyance of land by deed, in which the land is c 9 ertainly bounded, it is very inathaterial whether any, and what, quantity is expreped, for the description by the boundaries is conclusive." So in Jackson vs. Defendorf, 1 Caines R. 4q3, the deed was for "one certain lot of land, known as lot No. 10, in the new patent, Sze., bounded and described as can be more fully made to appear by a map of said patent ; the said lot No. 10 said to contain 200 acres, more or less." The court said, "the intent was to convey the whole lot. It referred to the map. When the quantity of acres is men-tioned, it is only description of the lot according to common ac-ceptation." So in Lodge's lessee vs. Lee, 6 Cranch. 237, a grant of a certain whole island was held to convey the whole, though the courses, dis-tances, and quantity mentioned in the deed would exclude part of the 'island.
ARK.] DOE, EX DEM., PHILLIPS HEIRS v. BENJ• A. PORTER ET AL 29 These three cases embody the rule laid down in all the cases upon the point : and the ruk, as laid down, may be definitely stated to be, that where it plainly appears to have . been the intention of the grantor to convey a whole tract or lot, known by a certain name, definitely specified on a map oi plot, or described with certainty by courses and distances, or boundaries, there, though the courses and distances, boundaries and quantity given, do not agree with the specified tract of lot as it exists ; or where the quantity does not agree with the courses and distances or boundaries specified ; the grantee will take according to the intention, without .regard to the quantity mentioned. Mann vs. Pearson, 2 J. R. 27 ; Jackson, vs. Barringer, 15 J. R. 471 ; Jackson vs. Wilkinson, 17 J. R. 146 ; .Jackson vs. Freer, 17 J. R. 29 ; Dugan vs. Seekright, 4 Hen. and
Mun. 125 ; Jackson vs. Moore, 6 Cow. 717.
And the rule is the same thOugh neither courses nor distances correspond with specified boundaries. The boundaries will govern. Pernam vs. Wead., 6 Mass. 131 ; Gerrish vs. Bearce; 11_ Mass, 193 ; Howe vs. Bass, 2 Mass. 380 ; Aiken vs. Sanford, 5 Mass. 497.
But though quantity always yields, yet I apprehend no case goes so far as to decide that the quantity called for never" governs ; or that if A sells so many acres in such tract, without further specifi-. cation, and has just that number of acres in the tract, and no more, the grant would not be operative, and that the grantee would not take by acres. Tho principle is also admitted that where a purchaser cannot •make out his title except by a deed leading him to a fact material, he will not be deemed in equity a purchaser without notice. But we are utterly unable to percei ve what posSil?le bearing this prin-,ciple can have upon the present. It is laid down in cases where there is a question of fraud or lien, and where the conscience of a purchaser is to be affected ; but if it is claimed as being applicable to this case, it must certainly be also assumed that, no matter how .certainly the land may be described, whether by numbers or metes .and bounds,, yet if subsequently a reference is made to a prior deed, -that deed will control every thing, and the purchaser will only take _in accordance with it. It is certainly a novel idea to press into ser--vice, in construing a deed between grantor and grantee, a decision
30 DOE, EX DEM., PHILLIPS 7 HEIRS V. 13EN.T. A. PORTER ET AL [3 made in equity between parties standing in a different atfitude, and upon the subject of fraud or lien ; and to assume that because if a purchaser, claiming to have purchased bona fide and without notice, cannot make out his title without reference to a deed leading him to a fact material, as of a charge on the estate, he will be deemed against creditors, &c., to be a purchaser with notice of such fact; therefore, if a grantor mistakes, in referring to a previous deed to himself, the contents and tenor of such deed, the grantee shall be bound by the mistake, as against the grantor himself. The authorities quoted to show the effect of recitals are not de-Lied to be correct, but it is admitted that they do conclusively establish the principle that a recital in a deed, lease, or release, is. conclusive and an estoppel against the grantor, lessor or releasor, and all persons . claiming under them by privity of estate; but how the conchision is thence deduced, that the recital is also conclusive. against the grantee, or a person not privy in estate, we do not hazard a conjecture. The cases referred,to in 6 Cow. 721, and Hob. 171, will be considered hereafter. In the present case, the land is first conveyed by quantity—so-many acres in such a tract. The grantor did not, as in the cases-quoted in support of the two rules which we first laid down, first. grant a certain tract of land ; nor did he first grant land by certain. courses and distances, or included within certain boundaries—and. then add that the lands so conveyed contained so many acres. Not so. He first conveys so many acres of land, and then refers to a_ certain deed, (if he refers to it at all in reference to the grant,) to-explain what land he intended to convey. Before laying down the rules, which, as we conceive, govern this-case, we refer the court, in order to present our views fully and in-- telligibly to them, to the case stated, the deeds and the diagram in. thip case, by which the following facts will appear. The whole tract of 640 acres, of which the land in dispute is a. small fraction, was confirmed by the United States to William Rus-sell, as assignee of Patrick Cassidy. Phillips had become part owner of portions of it hefore the patent issued ; and upon the isSuance-
r" ARK.] DOE, EX DEN., PHILLIPS HEIRS v. BENJ. A. PORTER ET AL 31 of the patent in 1824, Russell again conveyed to Phillips, in order -to perfect his title,- such portions of it as he had conveyed before the patent issued:
For the purpose of this case we have -only to examine the situation of the whole tract on the 1st of October, 1830. 273.59 acres of it had been laid off by Russell and Phillips, as joint . proprietors; and constituted the town of Helena. With this portion we have 'nothing to do. Phillips himself owned on the 1st of October, 1825, ' all the residue of the tract. That residue consisted of 340 acres lying west of the town. Fraction A, on the diagram, containing 18 acres, fraction B containing 5 acres, and fraction C containing 382 acres, making that residue 366.82 acres. ' The 340 acres west, and fraction A, where conveyed by Russell to Phillips by deed of July 13, 1.825, together with 335 lots in the town. The two fractions and C, the latter of which is in dispute, were conveyed by Rus-sell to Phillips by deed of August 1st, 1825, and both these last mentioned deeds were acknowledged on the same day, to-wit : August 13, 1825. Phillips, an original proprietor of the town, knew how many ..acres there were in the town, and how many in the whole residue of the tract. He knew that the tract west of the town contained but 340 acres, 'and he further knew that -he owned the whole tract except the town, and that the residue of the tract not included in the town made the quantity of 366 acres—rejecting the fraction of an .acre, which at that day no man thought of mentioning in a deed. .He therefOre conveys, by deed of October 1, 1830, to Kendrick and " Fisher, 366 acres of land, in that PartiCular tract, which wa g all he had to convey, and' just what he had to convey, in the tract. Had he stopped here the description of the land conveyed would have been -certain enough, for he would have conveyed the whole tract except the town, and no one would have doubted but that the krant included the fraCtion in dispute. But it is assumed that he subsequently refers to the land which he was conveying, (which we rhall hereafter dispute,) and adds, "which said tract of land was
-conveyed by William Russell to Slyvanus Phillips, by deed bearing -date July 13, 1S25.." And it is contended that only the land de-°scribed and specified in that particular deed passed by the grant.
32 DOE, EN DEAL, PIIILmrs 7 HEIRS V. BENJ . A. PORTER ET AL [3'. The court will not fail to remark that no tract is conve-yed -by that deed, containing 366 acres ; but it conveys two tracts, one of 340, and the other of 18 acres, and 335 lots. When Phillips granted "the' tract" of 366 acres named in that deed, did he mean the tract -of 340 acres, or the fraction of 18 acres, or the 335 lots, or any two of them, or all together ? For if the construction contended for be correct, the court can presume one of these just as well as the other. And therefore the reference to the deed of July 13th, 1825, if that reference restricted the prior grant, did not render that certain, which was micrtain before, but directly the reverse. The court will also remark, that the deed of July 13th, was not. acknowledged until August 15th, the same day on which the deed of August 1st. was acknowledged ; so that it may naturally be contend-ed, that as Phillips, in making a conveyance, manifestly intended to. cover all his property, by a voluminous deed, he might easily mistake or forget the date of a prior deed, and refer to both deeds, from. the same person, and acknowledged the same day as being one deed_ of a particular date. Having premised so much, we may now proceed to deduce from the authorities the precise nile of law applicable to this Case. For it all depends upon the simple question, whethei the cause referring-to the deed of July 13, (if it ' relate back to the grant at all,) is a. limitation and restriction of the previous description of the premi-- ses granted, or merely an explanation.
The 'general rule is laid * down in Dowtie's case, 3 Co. 10, and Dyer 292 b., as in COm. Dig. Fait 4, to be, that if the description of the tenements granted, comprehends several particulars and circumstances in the same sentence, all ought to be true, otherwise the. grant will be void ; and the instance given us, if a man convey "all his tenements in the parish of B, in the tenure of A," there nothing passes, unless the tenements are both in the parish and tenure.- mentionea. And this rule depends upon the common construction of such a. sentence, according to the rules of grammar. For where the expression is, "I convey to you all my lands in the city of Little Rock, in the' county of Pulaski,' the meaning of the sentence is, that I con--
ARR.] DOE; EX . DEM., , PHILLIPS 9 171EIRS V. 13ENJ• A. PORTER ET AL 33 vey to you such lands as I have in that city and eounty—an,d if the - lands are in the county,,bM not in the, city, nothing passes. So inDyer. 2,92 b., an instance is given, , as, where I convey "the manor . of A. in ,the county of B." If there be no such manor in ,that county, but, there be such . an one in the county of C, ,nothing, passes, And for the reason that it-is all one short, connected sentence—it is all description, and no part of it is added as explanation. And because if I haVe lands both in . the manor of A and the county of B, and the manor is net in that county, if is utterly uncertain whiCh lands should pass by the grant.. A reniarkably clear illustration of the rille is given in Dodding-ton's case, 2:Co. 33. The grant there was of -"omnia illa messuagia in tenura Johann,is Brown; "scituat' in Well' nuper prioratui de W. spectont' ;" and 'in truth, the fand's lay in D. And it was adjudged, that "bec , au . se the 'grant is general, and is restrained to a certain town, the grantee Shall not have any lands out of the town to which the 'generality of the grant doth refer." "And this case," it was resolved, "is the stronger, by' reason of this pronoun (Oa). for 'omnia' ilib ntessungia', Sid. makes such a necessary reference, as well to the town as to the tenure of JOhn Brown, that' if one or the other fail; the general grant is void : for (illa) is not satisfied till the sentence is ended, and ('illa) governs all the sentence till the full stop. . So in Bozoun'S case,. 4 Co; 35, , where the 'grant was, of "totain illam portionern of -tithes in Longhorn, in county of Norfolk, with all other tithes , whatever in -Longhorn in 'said. county of Norfolk, then or lately in the- occupation of John Corbet ;" it was decided that- the whole sentence was. to.'be taken together ;- "because the pro- • noun (illam) shows plainly that' there ought to be words subsequent to- reduce and explain 'what portion should. be granted ;-s. c. that which was in the occupation of COrbet ; and,' therefore; this- pronoun (illam)..is not satisfied-till it is'come th the.full end of. the sen-fence, .and that, with ,the, conjunction. (with) couples the whole to-gether, and, makes, the subsequent part. of. the sentence refer to the former." .• Haying thus .explained . the general rule,. we now arrive . at the rules which govern the present ease:
DOE, Ei DEM., PiIILLIPSI'HEIRS-i; A..-P-OETEi'ET -AL: [3- - Comyn lays It d. OWn, if, as' follows : “If the thing deicribed is . suffiCiently 'aseeitained; i .i§ stifficient, though all the particulars are not . true: aS if a ' man cOnVeys his ,'Louse in B, which was ThOinas Cotton's ': And the reas. on is that the Words "which was". shew the ' „• last cGuSC to ' be an e4lanation, and not a component part of the desci:iption; So Lord 134.coN says, Law Tracts, 102, ,"v,eritas nominis tollit, errorem demonstrationis." And, , therefore, he ,says, if ° lands are de
scribed in the first instance by their proper names,_as i "the manor of Pale ;'! or, by their abuttals, as, "a close of, pasture bounded on the north by, &c. ;" or. if .the general boundary, is .mentioned, and the grantor has no other lands in the same precinct ; or . if the lands are described by their appendency to other lands more notorious, as, parcel of the manor of A : all these cases, , if there be an error in any addition made, to,,these names 'or descriptions, : it will- have no effect.
The present.case comes precisely within : the rule as laid down by Lord BAcoN—for in the grant to Kendrick and Fisher, the general boundary is mentioned,-and Phillips had no other land, except town lots, in the tract—and, moreover, it is described as."appendant to a .tract more notorious." So in Plowd, 191, where a lease was made of "all that the farm of Brosley, then in the tenure and occuipation • of R. Wilcox," which was not the fact, the court said that the word "farm" had a certainty in itself ; and when the description went further, and said, "in the tenure and occupation of Wilcox," this was of no effect . ; for though it was not in his occupation, yet it 'should pass ; .becanse there was a certainty in the thing deVised, viz . : the farm- of Brosley: and so another certainty put to a thing which was certain enough -before, was of no manner of effect:
- The case of Stuckeley vs. Butler, II o6. 168, referred te with so - 'much confidence by the appellants, Was uPon a deed:Whereby the 'grantor sold "all the' trees groWing upon a Certain rha'ner, te wit: the trees in five certain groves named therein," which five 'gibves 'did not include -all the trees on the Manor ;. and' the que'stion was, whether the latter clause should .reStriCt 'the *general' giant ; and
ARK.], Po; Ax. pg14., Pn I-4w v. BENJ. A. PORTER , E1: Al! 35, was held. that it should,not,.but .was, paid. :And one reason.assigned, therefor is, "that in grants of particulars, sufficiently once ascerr tained, another mistaking will not frustrate, theugh it be false." The reference to Stuckeley, vs, Butler seems to be,for the.purpose of 'showing that it is no ,importance, as to this, questión,,that quantity is named first,. instead of last. And .to this ,point Dowtie's case and,Doddington's case, referred. to in Hobart, are quoted. -We have already mentioned both, and shall return to Dowtie's case yet egain. At, present it is only necessary to observe that it was upon a grant "of all my tenements in the parish of St., Andrews, Hilborn, in the tenure .of William Gardiner ;" and as the grantor had .no houses in the parish, the. grant was adjudged . void. CoKE thought it would have stood, if the tenure of Gardiner had been first: nam-ed, because then the true part of the ,description would have come first. Be was clearly wrong in . -this, as Hobart says, and according Lo his own ,restrictions in other cases. It is all one description, in one short sentece, and must all stand or fall together. But neither Stukeley vs. Butler, nor Doddington's case, sustain the 'position assumed by• the appellants upon .the strength of them: because the question in both cases was, whether the whole grant were void or not ; and not whether the latter clause should,limit or explain the former. . The principle which does apply where the whole is not void, is, as declared in the Bishop of Ely's:case, Shep. Touch, 88, "that where there are two, clausesin a deed, repugnant to .each, other, the first shall be,received,..and the , last •rejected, except there be some special reason to the contrary." So in Cother vs. Merrick, Hardres, 94. • . So in Mason,vs.. Chambers, .Cro. Jac. 34, POPHAM, C. J., said, "if the Queen should let the manor of D. quod guidon, manerium is of the anntial, value of five pounds, where it is not let for such a rent, and . the' rent or value is Misrecited,• yet the •lease. is good, ,be-cause there . is a certainty before, .and'the. addition of quod quidem,'." &c. is not•material... But if..she let "the •manor of D, of the annual rent value Of five pounds," which is intended to be of such a value, and iS let at a greater rent,I or Appears upon record to be of A greater value', it is Void, becauSe ethe 'first case 'she intended to' pass the
36 'DOE, EX DEM., PHILLIPS 1. HEIRS v. BENJ. A. PORTER ET AL [3 manor, and the addition. of the quod quidem, &c. is but to add-anoth-er .certaility: but it is in one sentencei-thatitis-of such a-value, and tha:t in tali parte, her intent- appears mot to grant a thing•above 'such 'a value ; and therefore it is otherwise." The position here assumed, as to • the grant of the manor of D; of such a value, is doubtless correct, in the 'case of a grant by the Crown, because in such 'ease the grant is not taken most strongly against 'the grantor—and the mice distinction drawn by the court shows how they would have decided even the last point, had it been a grant by an individual. So in the present case, if We now delay for a moment; and view it by the light of the authorities already before us, there is sufficient certainty in the first part of the grant. It is of 366 . acres of land, part of the Cassidy tract. Phillips granted the exact number of acres owned by him in the tract : he had so much which he could grant, and no more, and he granted all. If the grant had stopped there, could it have been ascertained what land passed by the grant ? most certainly ; and if so, there was a certainty. The subsequent ex-pression, (if referring 'to the grant at . all,)- is not . a part of the sentence connected with the first clause by a conjunction. It is an ex-planation. It is adding certainty to • what was certain enough before ; and it may therefore be rejected. Had the grant been, of "the land conveyed to 'me by .deed of July 13th, containing so many acres ;" then the grantee would have taken according to the deed, with regard to quantity—but as it is, the first part of the grant always governs, if it is certain enough without .the addition. See 4 Cruise, 365-6. So in Dowtie's case, 2 Co. 10, which we first quoted ) and which is also relied upon by the appellants, the court after laying down the general rule as we first stated it, go on to say, "but otherwise had it been, if a true certainty had.been in the first place, as if he had bargained and sold `the tenements,'. &c., in the.tenure of William Gar-diner, in the parish, of St. Andrew. • However, 'there it was agreed that the tenements shouldTass well enough,,notwithstanding the addition of the falsity : for ,utile per.inutile non vitiatur.". • . .. So in Dyer 50 b., it is land down by HARWOOD, .Attorney Gen-eral, that "if I release all 1the right which I have in 'White Acre,
ARE.] DOE, EX DEAI., PHILLIPS WEIRS .V. BEN.T. A., PORTER ET'AL -37 find ,name the land certain which I, bought iof such .a man,..and:in . truth I bought it ,of another, yet;because:the land is. certainly. named at ,first, the..release.is good,: notwithstanding:the misrecital,-after-wards ;.but.where it is . made general,,it is, otherwise." . Asr for in-stance, if it .had been, Pall my . land whiCh I bought, of 'such a. ma.n,' having 'bought none of. him,.in that case, there would have.beentio basis of certainty laid, to . have . 'given effect. by reference to : the other words." Aind see Banks vs. Denshire I, Ves. Sr. 03 • and Roe vs. Vernon and Vyse, 5 East, 40. , We may now proceed. to. a further modification of the rule, and . that is that "where words of addition are mistaken, and contrary to the ,real fact, they will not , operate as a restriction on the preceding words," 4 Cruise, 325; which is exemplified as ,follows: " a corporation denrised in these words—all that their glebe land lying . in Chesterton, viz: 78 acres of land, and also the demesnes of the said 78 acre' • . s, -with all the tithes OT the said Parish of Chesterton, and alSo the tithes of the said 18 ' cres ; 'all which lately were in the Oc-. cupation of Margaret-Peto, deceased." The tithes of the land de-. . mised never were in the occupation of Margaret Peto, and the question was whether they passed to the leSsee. It was urged for the Plaintiff that the. WOrdS "in the' oecupation of M: Peto," wer• clause of restriction, which 'showed an interit that nothing shOuld Pass hut what' Wis in her occupatiOn. 'But ail the Iiidges Ieldthe lease good, and no 'restriction of the first words, because' there were. three distinct clahseS before : -. 11.st. The grant 'of the . 78 acres' 6f glebe. '2d. The gran-Ca the titheS'predial and perSOnal; and "8d. The giant Of the t' ithes of the 78 acres Of glebe ;' which' Were all distinct several clauses by theinselves. And the clause "all which," &c., did not depend on any of them; for the , words "which meke," &c.,. was a restriction only when the'clause was general; and was'all but one and the same' sentence and not ended or certain before:the end of, the . sentence. 'But where 'the clause 'was not' in . one entirb sentence but'distinct and disjointed from the , other,'aS 'here •t-Wa's, there could-not be any' restriction. Also, this 'being' inthe .case•of a-common person, (that is, the King not . being .aparty;) addition:6f a .false: thing; viz :,.false possession-,,shall never; hnre-the grant :lox the 'addition of a falsity shall , never hurt 'where 'there is-any' tridnne'r
38 DOE, Ex DEAL, Pirrtis 7 ' HEIRS V. B/sT,T. A. POItTER 'At '13' of ceithinty . 'before. Whe r ef ore 'they' 'all 'cOncluded.. that the'-grant was 'goad, 'arid ObserVed 'that thdugh the wOids "whiCh'were in the tenure of /4'. wheri they'ar6 One aild the sthnd s'entence, in.ay be constrtied to he i re gtriction, ydt in these' WordS'alhich were,' &c., the wora .SO•disjOinted, &Mid' not be a'ré gtriction, but an. e*planation: • gw!ift vs. Eyre Cri) CM'. 546.
The rule, is then thus defined by Cruise : "When the lands are first described generally, and afterwards a particular description is 1 1 • added, that shall restrain the general words. Thus, if a man grant "all his lands in ID, which he has by gift and feoffment of J. S." nothing will pass but lands of the gift and feoffment of J. S. But if he. grant all his lands in D called ii\r, which was the estate of. J. S. • . there the lands called .N shall pass, though they never were the estate 'of J. S." 4 Cruise, 337. The distinction here laid ,down, though, at first view ,somewhat• nice,. is : perfectly sound,. and sustained.: as-w,ell by .reason „ as author-ity. For ifI convey,to you "all. Triy lots in Little . ,Rock :which, I , hold by.deed all,,such Jots 4s, I . hold by that ,deed= • butif I convey "lot l\ro.10,in, Little , Rock, which, I . hold by .4e0,. from , A . B," ,there the latter elaus.e is mere, eplanation, and, *ill be rejected if JdQ not,hold the lot by •such deed,. And , so , it would, he if I, were. to :..convey. :two hundred feeti, front, in.. block AQ,. running back. 4.,right .angles, yih I .hold by deed , from , A )3,, and it peared ,that:I , bad two ,hundred feet front. in . that , block„..,and, more,. but : that: I . only, hold ; a, ,p:art, of . it , under the.. deed from A yet you would; take. the, yhole.,; , for . there; too,. ,̀f-the latter clause but explanation;', ;there , 12eing "sufficieuteertaluty,before..". , In- Lawes'ith: Beason,. 5 Taunt...207 ,.where the• deed was for land, lying Camberwell,, containing-so' many acresy•and -in the •posses-;; sion -of A., 13, , and C. J •Lor&MAwsFIELD said,' "this deed'sufficiently: shows-the -seller ?s intent to . pass all these-lands ; it describes in whose possession they had 'been, and' the ;number of acres ., and -therefore the lands do pass . by -the deed'. • No • man can doubt- of the intent ., of this deed to pass thosedands'.. • It has/conveyed ,so many acres:in thepos .Session:of-A, and . C, the nam-e . of . the 'parish only is mistaken, the 7party 'having been-infOrrired ,.the land' w'as--iu , CAmherwell:.' 'Why
DE3n.,.Pmairs."-ITIEUzga.-,BxpT'.,r.;_ik,.P0ATER did-. the ..parties 'mention the parish ,at; all -'iii;:the.-,deed ?,,, It Was unnecessary:7. ! So-it is laid- doWn in.Connolly vs.,Verno,n, 5 .E.ast.89,khat .there is a grant! 'of .a. p articul ar, :thing, once sufficiently,„ascertained by .soMe circunistances belonging:to it, :the. Addition of ,an.allegation, 'mistaken or false, respecting it, will, not . fruStrate, the grant."! - .The.,sanie. rule . has been often affirmed ,in'the linited,.States;:- ...In ,Worthingston„, vs.. Hylyery ;Mq,ss. 20,5, ,PARSONS.,,Q. .aaid, . "if the description -he, sufficient..to, ascertain the estate. ; intended . to be' conveyed, although. the estatewill..not . agree to i §onnq ,of :the paxticulars in the description, yet it shall,pass by, the conveyance, that the intent. of the parties,,may,be;e,ffected, ,,Thua,.•if: a ..11:lan . convey his. honse D, which, was formerly 0's, when it, was not, C's .but B's, the house in pahall pass,..if .the , grantor had but one 'house , in . P, . because !by, the description, of his , house, ;inD, ,his.estate intended . to be conveyed is sufficiently ascertaine,d.,'' „ , „, „ So in Bott.,-.0...Burnell, 11..Mass., 167,, -the ,couxt„said ,`.`general words are not restrained- by,restrictive, added ox majort eautela, or .by,affirmative words more restrictive; but . which. haveno, tendency •1o,render,a general description ambiguous or uncertain," The case of Cutler vs., Tufts,. 2 Pic1c...,2,72, .would.be. conclusive, • nven, if we had . no other case to sustain it. ,By the deed in, that-ease, the grantor conveyed his right and. title , and interest, in, and to ,one undivided . moiety or, half part .of -certain real estate, situate in the townsnf -West Cambridge,, Lexington, ,And ,Cambridge, the -same being, a part of the real .eatate of :the, late Williamtler, deceaed., ,And set off. as. ,dower ,to, the ; widow,.Rebecca ,Cutler." Had the deacription stopped here, say the,court,,no queation.'`could have ,arisen which.could, not. have been settled by. the! records of, the Probate of-.fice showing what lands, had, been.setoff fOr; dower to .Rebecca Cut-:kr." . But a clause was added which produced: the ,controversy,, viz : ,"ineaning, hereby to. reconvey to said Cutler, the.saine premises, with their appurtenances, that . the,, said Cutler„conveyed; to, me,, by.!his .deed dated ' Jlia , latter elapse, conflicted .wUh the .former.., It was doubtful whether it would not -reduce tlw moiety to Alouxth.part.. And the.court aaid,..`,`,is not this , repugnant? And if it is! *Ahem most' , clearly, by xeason as , well .as by the Authorities,
40 DOE. EX DEM.y_PHILLIPS' HEIRS 1): BENJ: 'A-PORTER ET AL ,13 the-latter clau§e ought to be rejected. It is not an explanation, but a direct contradiction. The words cannot stand together, -and the grantor-shall not-have the benefit of such an unjust interpretation of words; which he has himself introduced into the instrument, as would give him the right to destroy his own grant." , See this case confirmed in Sprague vs. Shaw, 4 Pick. 54. So in Jackson vs. Clark, 7 J . R. 217, the rule is laid down to be that "if there are certain particulars once sufficiently ascertained, which designate the thing intended to be granted, the addition of a circumstance false or mistaken, will not frustrate the grant." And see Jackson vs. Moore, 6 Cow. 717. In Jackson vs. Root, in which case the deed was for "the 600 'acres of land due me from the public, as a soldier in 'Col. Lamb's regiment of artillery," the rule laid down in Jackson vs. Clark was affirmed. The grantor was not a soldier in Col. Lamb's regiment, but in another and different regiment ; and the latter clause was rejected because there was sufficient certainty before, as he owned 600 acres-of land by grant from the public. In Jackson vs. Loomis, 18 J. R., 84, the same rule was again
affirmed ; and-also in Jackson vs. Crafts, 18 J. , R. 107, where there was a mistake in the number of the lot conveyed. We have been arguing this matter, thus far, upon the hypothesis and assumption of opposing counsel, that the words "which sai'd tract," in the reference to the deed of July 13, 1825, are intended to designate the .tract which he was conveying to Kendrick and 'Fisher. We now proceed' to . show that this is but a: hypothesis ; and we assume . and think we can demonstrate that Phillips did not refer to the deed of July-13th in order .to designate the land he was-con-veying to Kendrick and Fisher, but in order to designate the whole tract of which. that-was a part ; and that he referred to -it as a deed whereby the whole Cassidy . tract. was conveyed to by-Russell. In order to explain our meaning . it will bonecessary to quote the whole of -the grant,-which is as follows-:- '"Also one. o'ther tract, containing three -hundred, and sixty-six acres-of land, being part of a-six hundred-and fortY acre tract; originally owned. by- Patriek Cassidy, and confirmed ito Wra.,Russell under-Patrick Cassidy; and patented by -the . President- of the- IT:
ARE.] . DOE, EX DEM., PHILLIPS 'HEIRS V. BENJ. A.TORTER ET AL 41 States to Wm. Russell under Patrick Cassidy, and to his heirs,,by patent; recorded in the General Land Office in vol: 4, pages 243 and 244, 'and dated the . 26th day nf March, 1824, which said tract of land was conveyed by William Russell to Sylvanus Phillips, 13), deed bearing date the 13th of July, 1825, situate in the. county . of Phillips, and Territory of Arkansas, adjacent to the 'town of Helena." It is admitted by all, that whether the expression "which 'said tract" refers to•the first tract- mentioned, or to the second, there is a like mistake, because the deed of July 13, 1825, neither conveys 366 nor 640 acres—nor is it a deed conveying , but one tract, as would appear by the reference, but it conveys two, and 355 lots in the town. As upon either construction it is manifest that Phillips had forgotten what the deed of July 13 did convey, we are equally at liberty to suppose that he thought it conveyed the whole Cassidy tract, as that he thought it 'conveyed but one tract alone, or a tract of 366 acres. More so, indeed, because every, deed is to be taken most strongly against the grantor: • But we cannot found a legal conclusion on a mere hypothesis that he had forgotten one thing and not another, or that he was mistaken in one respect rather than in another. We must construe the grant by legal rules, and as no construction can make the reference to the deed of July 13th correct, we must take the grant by itself, and ascertain what would be its construction standing entirely alone, and without our knowing what was in fact conveyed by the deed of July 13, 1825. First, then, we understand it to be a general rule of law, as well as of grammatical construction, that when the word "said" is used, and there are two precedents to which it would apply, it has relation to the one next preceding it. Thus in the Queen vs. Holford, 3 Salk. 199, which was an information against the defendant for subordination of perjury, setting forth "that whereas in the court of our lord, the King, before the King,himself at Westminster, in the county of Middlesex, one Rhodes, lately of D, in, the county of Sur-rey, had impleaded the defendant, Holford, for that whereas he was indebted to the plaintiff, in the parish,of St. Clement's Danes, in the county aforesaid," and on arrest , of judgment, it was con-. ,
42 DOE, Ex DEM., PHILLIPS' HElles V. BENJ. A. PORTEI1 [3 tended that the cause of action was taid in.Surrey ; and the rifle is thus laid down: -"It is trite, it is saidOhat the defendant was indebted to the plaintiff in the parish of St. Clement's Danes, in the county aThresaid, which mast be the county of Surrey, because that was the county last named,"and therefore it must relate to that. county, whiCh is very true, viz: ad proximura antecedens fiat rela-tio; but that rule hath an exception, viz: nisi irapediat sententia,
as it plainly doth in this case. In the present case the rule applies to the • full extent, becanse by applying the rule the sense is 'no way impeded ; or rather, because the meaning' of the sentence doth not hinder the application of the rule. Second.' These words are naturally connected with those imme;
diately preceding them, and a descriptiOn is commenced, which, unless they form part of it, is incomplete. Take the grant by itself, without reference to any thing extrinsic, and we find that it first conveys 366 acres of land. The tract:so conveyed is stated to be part of a 640 acre tract, and here the•description stops; and a description of the whole commences, and of -the grantor's title to it. The 640 acre tract, is, it is stated, a tract originally owned by William Russell under Cassidy, and confirmed to said Russell under Cassidy, and to hi heirs, by patent bearing date a certain day end year, and recorded in a certain book and page. Dooes the description of the whole tract cease here ?' If it does, why was the grantor so particular in stating Russell's title to it ? It is perfectly clear that the grantor still goes on to complete what he had begun, by dd, ducing to himself title through Rassell to the whole tract. Put the whole sentence before any man who has a common acquaintance with language, without informing him of the contents of the deed of duly 13th, and he would at once say it is all a description of the whole tract, for it cannot be construed otherwise without doing violence to every rule of grammatical construction. Observe then further the conclusion of the sentence. Connect-it as it stands ; "which §aid tract of land was conveyed by William Russell to - Slyvanus Phillips, by 'deed bearing date July 13, 1825-, situate in the county of Phillips,' and Territory of Arkansas, adja
cent to the' towii of Helena." Now if both parts- of this clause.refer to the same tract, it would have read "which said -tract was con-
veyed, &s., and is situate," &c.
.;ARICj .DOE, ,E2173E111., A.PORTERT AL 43 • , But yea& ,as. we contend it.should be yeed-,-.7put .withine parenthesis allthe sentence; from "being ; part," to , "Jnly5 ,18.25," . inelnsive, and the whole sentence is, perspicuons, ,clear„ and , drawn with .suffi-cient attention to legaLaccuracy., Construed ,differently, hno sentence could. be more . inartificial and., .1low•then did the . •idea ever originate, that this :expression in 1:he latter part of the grant referred back ,to. the .first tract, named, passing by one intermediately•named ,Manifestly it is a. mere no-tion; taken up without thought, end. entertained ;from the ssheer ne-•Oessity of the case ; and because unless some. such •hypothesis was assumed, their•claim, shadowy and unsubstantial.enough , at the best, would at once drift .away from theni,..and dissolve into thin. air. If they travel out of the •grant;' and allege that the expression relers to the tract . firSt named; • beceuse the • deed , of • July 13th does 'conVey part of the 366 acres—still the consequence they desire does nof follOw—because 'the same•déed also conveys e pert of the whole tract—afid in either aspect he was miStaken. Admit then- that the sentence might even be construed either way, and yet our con gtruction must prevail,' because it. is most strongly against the grantOr. The whole argument of' the appellants then has' no•beSis ; for if the expre gsiOn' "which said tract," and thd reference' to 'the deed of July 13, do' not relate both to' the tract' intended to be eonveyed' PhilliPs, but to the Whole traCt, of ciiurse• the . reference dbes not qualify or limit, or even explain the'grant by . quantity ; and- then, if the grantor Owned the quantity'd 'acres granted in'that particular tract, and no mdre, as he did, the gantee takes by quantity: •
TRAPNALL & Cocic; in response.. , • . It is not our intention to controvert the correctness of two rules, :laid down by the plaintiff in the opening of his argument, for our direction in the construction of deeds. It is.by the application of the :first rul. e that we . believe ourselves warranted in coining to the con-. elusion that the fraction in controversy was not conveyed by the trust
deed ; we must, however,. express our dissent, if . by the second rule •counsel for the defendants intend to convey the idea that the courts will, in. every ,instance, where there is a contradiction in a 'deed, or _where a skilful causist may .raise..a doubt, ,ad9r I a construction most
44-DOE, EX DE/4.,--PliaLIES! .HEIRS V. BENT': A. PonTE•ET. ,AL ; [3 unfavorable to the grantor. If in any instance the court can, by the application of those rules by which•we must beguided in the construction of • deeds, .arrive at the , intention of the parties, they will give effect to that intention, although there may be much in the deed obsctre and contradictory.. The rule above referred to only applies in those instances where it is impossible to arrive, by anY of the ordinary rules of construction, at the intention of the parties, and is most frequently applied in those cases where a doubt is raised whether any estate at all passes or not, or when doubt exists as to the quantity of estate, whether for Years, for life, or in fee. In these instances, rather than the grant should be frustrated, the court would presume against the grantor, and adopt such construction as would give effect to the deed, and not such an one as would.make it a nullity. So if there be an estate granted, without any limitation as to time, or if the quantity of estate is uncertain and cannot be de; termined by the words of. the deed itself, then the courts would construe it most favorably to the grantee and he would take the greater estate. We cannot perceive that this rule can rightfully have any . material bearing upon the question now in issue, which is simply whether the. fraction in controversy is embraced in the tract conveyed by the trust deed or not ; and that is to be determined by the description of the tract contained in the deed itself. If by applying the legal rules of construction to the circumstances set out in the deed' as dereriptive .of the tract, it shall appear that it was not the intention o'f Phillips to, include it in the trust deed, then the plaintiffs will be entitled to recover ; if on the contrary it shall appear that it was his intention to embrace it, then their claim must fail. We are then brought back again directly to the question, what circumstance' re-feiTed to in the trust deed, descriptive of the land, is entitled to the most weight and consideration aceording to the received and well settled rules of legal construction ? Is it in the description by number of acre3, or by reference to the deed of the 13th of July ? It is unnecessary to refer again to the authorities, showing the weight and influence of these different circumstances in the scale of 'con-Aruction ; those already quoted are ample and to the point. Nor do wt think the position we have assumedin regard to the ef-
ARK.], DOE, EX DEM., ' HEITth V. BENT. A. PORTEIVET -AL 45= fect.of recitals in the deed, is the least shaken by the arguments of: defendants' . connsel.. It is -true that some of the cases referred to were suits in chancery, but others . were actions at law ; and the court will find, by -reference to all, the cases cited, that the principle is the. same, both in law and in equity. The defendants' counsel very read-- ily admits that the . recital of one deed in another binds. the grantor, but is unwilling to hazard a conjecture as to its effect. iipon . thel gkantee. Had he examined the ease of Carver 1,e. Jackson, ex dem-- Astor, et al., he would have found the . principle stated so clearly as: to leave no room for conjecture. In that case, page 83, it is laid down, that a recital of one deed in another binds the , parties, and all those who claim under them. The grantor and grantee are evidently alike embraced within the rule. They are the parties to the deed. Thus we say,.that Phillips and Kendrick and Fisher were all bound by the recital in the trust deed of the deed, of July 13th : by reference to that deed the boundaries of the land can be definitely ascer-. tained, and of it had embraced a thousand acres instead of 366, still it would have been obligatory on Phillips, and neither he or his heirs could have recovered one acre of the surplus ; and so if it contains less, Kendrick and Fisher, and all those who claim under them, are estopped by it, and cannot set up claim to a single acre not embraced in that deed. The counsel for the defendants says, "that the land is first conveyed by quantity—so many acres in such tract." If the court will look to the phraseology of the deed they will find that this is mere assumption. The language of that instrument is, "also, one other tract containing 366 acres." It is the conveyance of a certain tract, and not a difinite and certain number of acres "in such a tract." And the authorities already referred to, show conchisively the statement of the number of acres in such cases is merely matter of description, and is never regarded as a grant of a defined and certain quantity, except in those instances where there are' direct and positiye covenants to that effect. But because the deed' of* July 13th conveys one fraction' of 340 acres, and one of 18, and' 335' town lots, the plaintiffs con: -tend that this 'reference *does not render that certain which he: fore was uncertain, but directly the reverse ; and that it would' be impossible to tell whether' the 340, or . the 18 . acres, or' both
46 DOE, EX DEM., ' PHILLIPS HEIRS "1.). • BEN.I: A: PORTER Et AL .13 were , on the town lots. ' Whatever "credit such reasoning may have for its subtlety and ingenuity, it certainly cannot .be regarded as sound and practical, for who ever heard of town lots being described and designated as a certain tract of land As . both the fractions • were conveyed by. the same deed ., Phillips may very well have fallen into the mistake of calling them 'one tract. 'And the court might, as against Phillips; very correctly decide', that . all the ' land to which he acquired title *by that deed, should pass; so as to make up aa nearly as possible, if not altogether, the apecified nUmber of acres.
But suppose the niistake should 'be fatal 'to the constiuction for which we' 6.ontend, woUld it not fall With - a Mcre ciusliing weight apon +.11e‘construetion contended fOr on the other 'side ? For if they be regarded as aepaiate tracts, thefr cOnstructiOn would einbrace four . instead of two. If the' term, ' one' otlier IS likely to raise a doubt as to whether the two fractions in the deed Of 'the 13th of July pass or not, be it sO. We migbt pIdù Sibly , contend that only one did pass, and that the dcseiiPtiOn by . nuniber of acres, though not exaCtlY accurate, would yet suffiCiently manifest that it was the intention of - the grantor to convey the fargest fraetion, and thus iestriet the grant to the 340 acres. We might 'suggest other reasons in sUpport of this view, but as the question is not before the court, we will not further pursue it. We cannot conceive how the argument of counsel can be strengthened by the fact, that both the deed of the 13th of July and first of August, were acknowledged on the 15th of August. The deed is referred to by the .date it bears, and not by the date of its acknowl-edgment. And if this circumstance can make any figure in the cause. at all, with all due deference we think it must be in our favor. If he had intended to convey all those fractions, he would perhaps have referred to the date when those deeds were acknowledged, and declared that the land was the same embraced .in the deeds of that date. But he is particular to designate the deed by the day it bears •date, thus excluding the idea . that any thing more was intended than • the land embraced in that particular deed. . Counsel for defendant have endeavored tO point out,•by reference
ARK• .] DOE, ; Ex DEM.,,PHILLIPS 9 klEIRS V. BENJ.: A. PORTER ET 44 47 to numerous authorities, the,,distinction, between a limitation or re: striction in adeed,.and an explanation, and to show what words will be regarded as words of restriction, and what as words of explana: tion. It would protract this argument to too great a length Nere to examine each separate authority cited. , We must, therefore; eontent ourselves with,examining a few of the Tr,ost prominent.
We will remark in the outset, that all the decisions upon this point have, been made in those cases where the question was, wheth: er the grant, . should entirely fail or not ; and in those : cases the courts, have decided that, where the thing to,be ascertained has once been truly described by words sufficient to ascertain and identify it, it shall pass,. although there ,may be added an explanation that is false.
Suppose we admit, for , the sake of the , argument, that the reference to the deed of July is but an explanation, and not a restriction, we have yet, to find the , first case in ,which , the courts have gone so far as to reject the explanatory words when there was a Subject matter upon which the grant could act, and when the question was not whether the grant should entirely fail, but to which of the several things did the grantor intend it to apply. The distinction, it is important the court should keep in view. The authority quoted in Comynis Dig. F. E. 4, yery clearly illustrates the truth of the dis-
tinction: "if tho thing described is sufficiently ascertained it is sufficient, though all the particulars are not true ; as if a man conveys his house in B which,was Thomas Cotton's, and in fact it was not, it will pass." But suppose he had two houses in B, one which had been Thomas Cotton's, and one which had not, and a question shonld arise which house was intended by the grantor, Would the courts reject the explanation ? Or would they not rather look to it as a decisive feature in the description ? Suppose A should convey a tract containing _two hundred acres of land,. lying in Pulaski county, which said tract.was lately, in the occupation of B, and con.- veyed to him by 13, by deed bearing date the 13th of July, 1825, but in fact there should turn out to , be but 190 acres ; A also had other tracts of land in the same county, lying adjacent to the one sold, to which ,he .had acquired title , by deed from various other persons,, would the court, in seeking to ascertain, and identify the
48 DOE, EX DEM., PHILLIPS 7 HEIRS V. BEN.i. A. PORTER ET AL [3 trabf, reject- tlios-clater -words-altogether, even though-they-might-regard them as words of explanation, and permit- the grantee to claim and hold land lying without the tract, not conveyed by B, nor-included in the deed referred to, to make up his 200 acres ? In the case referred to in Worthington vs. Rylyer, 4 Mass. 205, the court lays a particular stress upon the circumstance that the grant-or had but one house in D, evidently implying if he had more, and one had in truth been in the possession of C, that circumstance must be looked to to determine which house was granted. A great deal of authority has been adduced to show that a false addition will not vitiate or frustrate the deed if there has been saficient certainty before. I must here again press upon the couit the fact, that the question is not whether the deed shall be frustrated, but it is to what lands does it apply. And the court will also remark, that what is regarded as and addition here, is not a false circumstance, but it is true that there was a deed from Russ'ell to Phillips, bearing - date of the 13th of July, 1825, conveying to him a tract of land, part of the 640 acre tract patented to William Russell, and the fal
sity is not in that reference, but the mistake consists in supposing the land conveyed by that deed to contain 366 acres. Now, even according to the argument of the defendants' counsel; Russell had more than one tract or parcel of land comprehended in the 640 acre ' survey. To these he acquired title by deeds of different dates—he conveys one tract containing 366 acres, and refers to the deed of 13th of July as limiting the grant to the lands therein contained, or as explaining, I care not which, with more precision and certainty the particular tract conveyed, will the court now say, when this explanation is true; and there is a subject upon which the grant shall act, that they will attach no weight, in ascertaining the intention of the parties, to those circumstances to which they have themselves expressly referred to illustrate their intentions, and say that they mean to convey all the lands acquired by deed of the 1st of August, when they have themselves declared it was only the tract conveyed by the deed of the 13th of July ? But the counsel for the defendants seems to regard the reference
' to the deed of July as merely an addition, .and that because 366 • acres are not contained in the tract granted in that deed, that it is
ARK.] DOE, EX DEM., PHILI]IPS 7 HEIRS V.'BENJ• A. PORTER ET Al. 49 therefore a: false 'addition.. It is evident they have fallen into this ;-.TrOr from the common nOtion-that that Which' eomes'la'st is anadditien to.that whieh was first. 'But this is certainly-not the legal and technical sense 'Of the term. "If thereis an' error- in the principal description of the thing intended to -be granted, though there be no error in the 'addition, nothing will pass:" . 4 'Cofn,. Dig.; note A., and' the 'example cited- in illustratiOn of the rule is from Bac. Tra. 165,- That if 'a person grants tenemetuni . uum, or omnia tene-ment& :§ica, in the-Parish of St. B. without 'Aldgate, where, in truth, it is without Bishopgate in .tenura Gulielmi A, which is true; yet the grant will be void bedausé that which Sbunds in denomination is false, which is the inOre worthy, and that which sounds in- addition is true, which is the less. And though.the words:in tenura Gulielmi A, which is true, had been first placed, yet it had been all one. Now we yenture to affirm that no case can be found , in which the mention of .the number of acres will be regarded as constituting any part of the denoinination, but the cases to , which we, have already adverted abundantly show that it is always looked upon as addition. If it was considered as denomination, then it would be fatal, in all those cases in which the quantity has been falsely stated in' the deed, for a misdescription in that. respect, as we have seen, will defeat the grant altogether. We donate land not by the quantity of acres, for that o would designate no particular land, but by reference to its natural boundaries, its situation in counties, and the township, and range, and section, by reference to patents and deeds by which its Jocality can be definitely ascertained and fixed in the general map and survey of the country. The circumstances of denomination in this deed are, first, that it is a tract of land in the 640 acre tract patented to -Win. Russell, Under Patrick Cassidy, by Patent bearing date, &c.,' and which said tract is the same conVeyed, by 'deed .c;f 13th Jtily, by Russell to Phillips. The number Of acres, although it may come first, is but addition. Suppose -Phillips had not Owned a foot of land in the 640 acre tract, and no land con-- - tained in the deed of 13th July; woUld it for a nibinent be pretended - that the grant • would operate uPOn other • lands which he' Might eWn alseWhere ? Would 'hot the gtantee be pa to his aCtiOn upon the covenant in the deed to recover any damages he might siistain ?
50 DOE, EX DEM., PHILLIPS 9 HEIRS V. BW. A. PORTER ET 'AL [3. Are not these the features of .the description which .are the more worthy.? They are the terms of denomination. , It is by these that the land is known and denoted. In examining the authorities it will be perceived that the distinction drawn between the individual in: stances, put in illustration of generalrules, is often extremely,subtle and refined, depending upon a .very slight change:in the phrase-ology. Hence there is greatsdanger of,falling into error, unless we note with the most exact critical attention the peculiar structure of the .sentence in each individual case, and the . particular change of phraseo]ogy which gives rise ,to. the distinction. . It does se,ern to us that counsel for the defendants has fallen into many material errors from mot having.obseryed this rule with sufficient . care„, Many of the cases Which they have ' cited from the authorities, and the inatances pit by themselVes 'to illustrate the construction for which thej, contend, are liable to the . weighty objection of not bling analOgOus in point of fact to the case presented before' the cenrt. The peCuliar phfasedligy and 'Structure of the sentence do not eXist in thi's case which'giVe rise to"the ride of 'cOnstruction under 'cover' Of Which 'the defendants no* seek 'to shelter their clairn. The case referred to in' 4 Cruise, 337; with so 'inueh emphasia, furnishes an instance of th'is error. When. the' lands' are "first de- . , , scribed generally, and afterwards a Particular descriptioh iS added, that shall restrain the' general wOrds:' Thus, if a man grants all his land in b, which he has by gift' and feoffment of J. S.; pass but lands of 'the gift and feOffm' ent of J. S:* But if he grant all his lands in D called N, which waa the estate of J: S., the Ian& called N shall pass throngh'they never were 'oi the estate of J.' S."
Let us examine the latter clause of this sentence, and extract from it the reason of the rule. The court will perceive that "all the lands in D called N" are the subject matter of the conveyance, and the deed first,grants all those lands absolutely, the addition therefore of the clause, ."which was , of the estate of J. S." will not vitiate because the lands which were of the estate of J. S. did not form the subject matter of the conyeyance, but was introduced merely as an additional eireumstance_descriptive ,of those lands. .The phrase "all the lands ,in D called N,", sounding in denomination would, , as we
ARIL] DOE, EX DEM:, PHILLIPS" HEIRS il.'BENP A.. PORTER' El' 2AL.51 have before shoWn,'be'regarded aS'the'moSt . we'rthY; fOr it iS eviant the 'grantor intended to conVey all those landa'knoWn h;y that dendm-iriation; and whether they'Were of • the estate Of dr not, is inuna-terial; because that Was an addition, with -a vi .AV'Of givitig a mere definite 'description' to 'the land, and noi 'a *Statement 'of 'the'.thing itself' to be conveyed. If 'the deed 'from Phillip4 to Kthidrick and FiSher had said, alsO all the 'land' Containing 360 aeres, 'then there might have been Sonie plaugibility in the argunient of 'defend-ants' Connsel, and sonie apparent siipport '-freid the a'uthorities. Then, the subjed 'Matter Of the conveyanbe, .thatich sOunded denoinination, would be' 'all the land 'which Phillip govñed'ii the 640 tract patented' to Wm. Russell; &C., &c:, and Whether 'the land was acquired by 'deed 'Of the 13th of July, or by Other deeds, would not be material, inasmuch as the grant•waS of all the land .fOrniing a- part Of. the 640 acre tract. 'But the language of the deed is very different. It is, "also ohe Other' tract,." viclently'Mlowing it 'Was Lis 'intention to eonvey Only a part, and not the Whole', and the ref-'erence to the deed of the 1-3th of Judy 'was 'for 'the pirpoSe of A8'eer-taitiing and identifying more 'certainly the 'particular parcel Phillips intended to convey IAA of the-SeVeral 'parcels • oWned• 'by the 640 acre tract; 'If we Were to change the. eNtaniple qiiiited from Cruise so as tO inOkO it • analogous 'to' the eat& befere" the court; it would read "also one other tract containing 366 acres in D, Called N, which was the estate of J. S."' - To- make• the parallel complete, suppose the grantor-had . several 'tracts in D; called N, one of which was of the estate of J. S. Shonld the question arise whether the deed conveyed all the tracts in IN called N, or'not,'*onld the Court • hesitate in -Confirming the -grant te the- tract hich wa8' of 'the 'es-tate J: S. ? - The case of Cutle4- "vs. Tufts,' 3 Pick. .272; • is referred to 'With much confidence by coin'sel for- the defendants, but we feel convinced when the 'caseis ekamined, it will be fonrid to turn upon a principle which can have no applicatiOn'to the question".. before the court, and that • it also presents a 'sfati3 of facts Materiallv. different from thoSe' of' the' 'case' under Consideration. ' • The court Will find inthe Case -referred to, that the grantor first' CotiVeyed an estate abSobitely.- The estate sb-cotiVeyea ' was"gecleatl 'afid •cer-
Ex DEg., PHILLIPS 7 ITEMS V. 141.C.J PORTEE ET AL.,[3, tainly. described as to jeaye _no doubt of its identity....In..the.subse, quent part of the deed a clause was added, by ,which a large portion of the, estate, conveyed was defeated, .and. the case turned upon -the well settled priLciple, that one shall not destroy, his , ,own,grant. The. court expressly, declare that the clause added is not an explanation, but a direct contradiction. It was in a distinct sentence, and formed no part of the description ,of the estate previously granted. .Such however, is not the case with. the deed now under consideration. It is ,all one continuous .and connected sentence. The thing .to be conveyed is a certain tract, of land. The number of .acres.,and the patent and ,deed .referred. to, are all introduced -to describe and identify this tract.. And the true question which arises upon this. deed • s, as we have already , stated, whether the description by quantity of acres, or .by reference to 'the. deed..of 13th, .of July,. .1ha1l govern. .It cannot be said that the. referenee to ' that deed defeats an estate already granted absolutely, and fully described and ascertained,.for -the description of the estate flows .on contin-uous. and unbroken . even to the end of the sentence. ., The most that can be said is,. that, in the, particulars, which make . up . the description, there is s9me mistake. or disagreement,. and then the rule, which .we -have already insisted upon . applies. That which is most permanent. and certain shall control that which is less. In-- , deed . the :argument. of counsel seems to proceed upon an.. assumption ,of the. very point in dispute. . Assuming that the trust .cleed conveys,, absolutely, the four tracts or parcels. remaining of. the 640 acre tract, although, the language of the deed .expressly .re-stricts the conveyance to une, they. then go .on to reject altogether the reference to the deed of .the 13th of July, because it defeats a part of the estate they imagine already conveyed. On the con-trary, we insist the reference to. this deed is not, repugnant to; . or contrary to any which preceded . it:. it dees. not defeat an estate already granted, but it ascertains, and fixes the estate.• actually conveyed. We have heretofore shown that the. enumeration .of quantity is regarded as description,, unless there are direct and special covenants to convey a ,specified quantity.;. and .the .counsel for defendants, seizing upon the description •by_ number of acres, regarded by. all.the authorities •as the lowest and least.to, be relied upon, endeavor to give it precedence over that description esteem-
ARK.] DOE,.KX DEM., PHILLIPS? HEIRS /./..BEN,J! A. PORTER ET AL 53 ed the .highest and -most conclusive... There .is only , one other, argument which we‘ deem it necessary to notice,„ and that is,, that. the words, "which said tract," in . reference, to- the, deed of the. 13th of July, 1825,, were not. intended, to..designate the tract which. Phillips was conveying to Kendrick and. Fisher, but that they referred to the 640 acre tract. -It.does seen to ,us au extraordinary stretch of the imagination. to •suppose .for one moment, that Phillips could..have fallen into the -mistake, of believing that he had acquired title to the whole 640 acres, by the. deed- .of the 13th of July ; more particularly so, as he never did, acquire title to. the 640 acres, as.one -connected tract, by any . deed. “ Sorne. time befor the 13th of . July, 1825, the 640 acre tract had, been split up into various sub-divisions ; the. town of Helena had been carved out. of • it, and small fractions were left on every side, separated and dis: connected from each.other, each .forming ,a separate and,independ-. ent tract of itself. So far as we can be guided by these material_ facts, in .arriving • at the intention of the grantor., .we cannot doubt. but what the words, ."which, said tract," were designed to .refer, to the firsi mentioned _tract, which ,forme.d the .subject Of, convey-ance. We can much more, readily imagine that Phillips,may. have mistaken, by a, few • acres, the contents of the tract conveyed, by the deed .of the 13th of July,. than„ we. can suppose that' he. had fallen into the- very gross , error of believing that- he had acquired title to the whole. 640 acre tract. by., that deed. Nor can .we. refrard as. entitled. to much weight, the argument drawn from the grammatical structure. of the sentence. In . construing deeds,. the .cOurts will not, defeat, the obvious meaning , and intention of the parties, by a too.rigid. adherence to the nice rules, of grammatical construction.. Even, the example .quoted, so far from , establishing any fixed and inflexible rule, shows clearly that the court, will direct the relative pronoun either to the first or last mentioned sub-ject, as its antecedent, accordingly as the .sense of the sentence made direct. .Were, the sentence correctbr . marked . and punctth. ated, all that part of :it .beginning with„"being part of a . six. hun-. dred . and forty acre . :tract," down to .`,`Alarch, -1824,". inclusive,. would, be included, in a parenthesis, and indeed,. the whole, of,. it might he stricken out, and yet the.deed.would be.equally certain and ,definite..., It contains. no description of the particular tract
• 54 DOE; EX 4DEM.; PHILLIPS HEMS V. BEN . I. A-. PORTER ET AL [3 granted, but breaks the COnnection- of-the . sentence for, a; moment ie insert a' description 'of the entire original . tract, of 'which the
'One granted &institutes 'a part, and that description ends at "March, '1824." The 'original connection of the sentence iis then
iesunied; And' it proceeds on to ,COmplete . the description of the particiitar tract which forms the' subject' of the' conveyance. But the )1). Posite'cminsel. insist that the-description of the.640 acre tract does riot end thtiPit reiehes "July;- 1825 . ;" • ,and . that the parenthesis slurind be extended so as' embrace those : words ; and the reason assigned is, first, that as 'Phillips had commenced by setting . out Rus-
sell's title'to' the 640 acres; . wen-rust presume that it .was for . the purpose 'of dedueing 'to ' himself,' -through Russell, title to the whole 'tract. Now We 'Would Ask' if it' was . necessary that Phillips should Make Out title In hiniself to' the 640 acre tract to enable him to con-Verthe fraction granted in' the trust deed ?' Most clearly it was not. It is stiffident for the purposes of the conveyance, to show•title in RusSell 'for the' 640 adrOs, Of whieh this' frattion forms' a part, 'and the-1i a deed front Russell to Phillips for thi§.. part, 'which is done'by
itferenee to the' deed 'of 13th July,' No man can read . the sentence Without seeing 'that the description of the 640 -acre tract; andi.the itayment Of RuSsell's title toit; end g with "March, 1824," and that the sentence returns at that point front -the . digression, to resume the description of the particular tract granted. This view gives additional strength to the construction for which We contend, and shows Most clearly' that 'the deed*of the' 13th of July forms an im-portant- and indispensable link' in the :chain of the . defendants' iitle ; strike out this link And the chain 'Which unites their title to that of the original -patentee is broken forever. They cannot trace
A regular and Coiutected' title back- to the original grantor, but by 'and through the deed o'f the 13th of July...Will the court permit them, when. it become's necegsary to trace:back their claim of title to the patent, to aVail themselves'of the benefit'of this deed, and yet disregai'd and 'reject it altogether from the description; when it may suit their :purposes to de. sO'? WO cannot believe.the court will tolerate so whimsical and capricions a constiucEon. The other argu. *ment for extending the Parentheis to "July,' 1825," is founded upon .a trifling gramin'atical inacctiracy, Stich as . can have - o m'aterial weight in the:calise: If .guch refined and fastidious critisim's ai6 to
ARK.] DOE, EX DEM., PHILLIPS' HEIRS V. BENJ . A. PORTER ET 55 prevail—if the obvious intentitm of the parties is tube defeated,. because the draftsman of the deed has . used a verbin the wrong tense; or omitted altogether -the auxiliary verb--7then, there is not , a man in this state whO does not hold his land by a title frail and precarious indeed..
LACY, JudgeAlelivered the opinion of the court : The question now submitted for adjudication lies within a. very narrow compass. It-is, nevertheless,, a question 'of 'considerable magnitude And interest, and orie of no ordinary difficulty. Here we have given to 'the whole . stibject, and to every part of it; a most patient and full investigation.' Both parties title to the' land in controversy, under Sylvanus Phillips ; the lessors of the -plaintiff, as his legal heirs and representatives ; .the defendant in the action, as a purchaser, for a valuable consideration, from lais immediate grantees. The law was adjudged below in favor of. the appellee, upon, an, agreed case. That judgment is now bronght before the court by appeal, for ,revision and coriection. The whole case turns upon the construction, of * , cleed from Syl-. vanus Phillips to. Austin Kendrick and Arnold , Fisher, bearing date the 1st day of October, 1830 ,; and the question now to be decided is what number of acres does that deed conyey ? .The deed embraces a great variety of clauses, conveying different tracts, of land, and it uses the same terms of description and limitation in regard to them all. It first states the number of acres contained in each traet, and it afterwards refers to and recites the particular patent and grant under which, Phillips derived title. The words of the • deed are, "the party of the first part have granted, bargained and sold, and by these presents do grant, bargain and sell unto the partY _ of the second' part, and to their heirS arid . .SSignS foreYer, the following described tract, containing: three hundred 'and sixty:Six a'cres
of land, being Part of a six hrindred 'an& forty acre tidet Originally owned by' Patrick Cassidy, and confitined to William RusSell 'iMder Patrick Cassidy, and patented by the *Presid'ent 'of ' the' Uniied States-to RuSsell, and his heirs; on the 'twenty :sixth day of March,. one thousand eight hrindred' and twenty-fOnr; Whieh
56 DOE, EX, DEM., PHILLIPS' HEIRS 11. BENJ. A. PORTER . ET AL [3 tract-of-land- -was -conveyed-by- -Willi tan -Russell -to -Sylvauus7Pli lips, by deed bearing . date the thirteenth day of July, one thousand eight hundred . and twenty-five, sitnate- in • the-County of Phillips and Territory of Arkansas,,adjacent the town of Helena."
It is conceded on all hands-that the true construction Of this deed w; ll determine the right of the parties to his suit. If the deed conveys 366 acres to the grantee, then the law, arising upon the agreed cases, is unquestionably for the defendant. But on the contrary, if it only conveys , 358 acres , of land, the exact quantity or number of acres included in Russell's deed to Phillips, of the 13th of July, A. D., 1825, then it is evident that the lessors of the plaintiff are entitled to a recovery of the premises in question.
The construction of the grant above quoted has been discussed with Much ability and learning by the respective counsel engaged in the cause, and we haVe derived no inconsiderable aid and assistance in the formation of our opinion, from their logical and demonstrative arguments.
In the construction of deeds, says Lord MANSFIELD, the rules applicable to such instruments are accurately laid down and defined by all the authoritie's ; and they rest for their foundation and support upon reason; justice, law, and comnion sense. We shall, in the present instance, only state a few of them, and such as we deem to halie a direct bearing On the case under consideration.
1st. ' All deeds shall be construed favorably, and as near the intention of the parties as possible, consistent with the rules of law. CWeise Dig. 4, 202 ; Bridge vs. Wellinglon, , 1 Mas. Rep. 219 ; Worthington, et al., vs. Hylyer, et atl., 4 Mass. Rep. 202 ; Ludlow vs. Mayer, 3 J. R. 383 ; Troop, et al., vs. Blodgett, 16 J. R. 172.
2nd. The construction ought to be put on the entire deed, atm every part of it. For the whole deed ought to stand together, if practicable, and every sentence and word of it be made to operate , and take effect. 4 Cruise Dig. 203, section 5, and authorities above cited. P. W'ms 497, Vaugh 167.
3rd. If two clauses in a deed stand in irreconcilable contradiction to each other, the first clause shall prevail, and the latter ahall
ARK.] DOE,.EX DEM., PHILLIPS HEIRS .V..BENJ• A.. PORTER ET AL 57 be regarded as inoperative.. 4 Gow..248; Marc': 94 ; 6 Wood;,107.; 4 Comgn's Dig., title•Fait: . •
4th. The law will construe that part of a deed to precede which oughtto . take precedence, nu matter in• what part of the instrument it may , be found. 6 Rep: 38 b.; Cromwell vs.. Crittenden,•1 Raym: 335; 10 Rep. • 8 ; -Buls. 282: 5th. -All deedS shall be taken'most strongly against the grantor. For the principle of self interest wilt Make - Men sufficiently Carefid not to prejudice themselves, or their rights, by using Words-or ternis of toe Oneral or extensive a Signification: 4 Corayn's Dig.; title Fait; 4 Cruise,' 203, 'sec. 13; 8 J. R. 394 ;- 16. J.-R. 172 ; Adams' vs.
Frothingham; 3 Maks •ReP. 352 ; Wation, et al.; VS. BoylSton; 6 Mask Rep. 411: -These'rules Are now regarded as maxims iii the
Science of the law, and- they' are perfectly couclusivuof -the points to- whieh they apply. '
In all conveyances the grantor must deescribe the thing*granted with sufficient .certainti . to ascertain 'its identity. And if he fails to do so, the grantee takes niithing, by reaSnn of the inicertainty of the grant ; for ihere being nothing fOr -the deed to operate upon, of emirse nothing passes by it.
The most general and uStial terms of descriPtien emicilOyed in deeds to ascertain the thing granted, are 1st, piantity ; 2nd, course and distance; and 3d, artificial -or natural Objects and monninents. And whenever a question arises in regard to deScription, the laVv selects those terms or objects which are most certain and material ; and they are declared to govern in the construction of the deed. Upon this principle it is held that quantity must yield to course and distance, and that conrse and distance must give way to artificial and natural objects. These plain and salutary . principles are fully , sustained by ,all the authorities, as a reference to them will fully show. Williams vs. Watts,. 6 Cranch, 148; Shipp et al., vs. Ma-ler's Heirs, 2 Wheat. 316; Jackson vs. Barringer, 15 J. R. 471 ; Powell vs. Clark, 5 Mass. Rep. 355 ; jackson v,s. Hubble, 1 Cow. C17.' In Jackson vs. Moore, 6 Cow. 717, it is declared that not.
only cmirse and distance must yield to natural and artificial ob., jects, but quantity, being the least, part ,of description, must yield
DoEy EX, DE rAI.; .PHILEIPS HEIR'S 1). BEN X. A: PORTER.. ET 4T . ._ to , botmdaries or 'numbers; 'if. they do not agree. .. And . in: Ma,nn vs. _Pearson, 2 J. R. 40, and hr Jackson vs. Barringer,.1.T. 472, it is .laitt.down to be. a.well. settled rtao, that where .a piece of land is con-veyed. by ,metes and . hounds,. or any other .certain. description; that will, control the quantity, although no.t correctly stated in.the deed, be the same more or less. And the- example . put ;byway of illustra
tion . is . that if , a man lease . to another All his meadows in .D. and S., containing, ten .: apt:es, • when,. jntruh, i they contain twenty. acres, all
..shall pass. , Jackson, vs. Wi./ki.nson, 17 cf. :. 147. ,, In. Powell vs, Clark, .5, Mass, Rep, 356,, the , rule , is thus, stated, `51-1 , conveyance .of land by ideed.in which the. land is: centrally bounded, it, is very im-, ,material whether. any or what quantity is , expressed ; for the descrip-
tion,by , tIteboundaries,is,conclusive." . .."And when the Anantity is ..mentioned, in addition to ; a description.of -the boundaries., without any express covenant that the land contains : that . quantity, the whole must be considered as description." It is a general rule,,"if . there . are certain , particulars ,once suffi-,.ciently ascertained, which . designate_the thing 'intended .to be grant-ed, the addition of a circumstance,. false or mistaken, will not frustrate the grant." But when the description of the estate intended be..conveyeti includes several particulars, all , of which are necessary . to , ascertain .. the estate . to : be conveyed, no estate .. will pass except such . as . will . agree to , every part of the description." . Thus, if Inan grant all his estate in his own occupation, and in the town L, no estate will pass, but w . hat ,is in . his . own occupation a . nd in that particular town. The descriPtion of the tenements granted must, in uch a case, comprehend all the several particulars and circum-,. Etances named, 'otherwise the grant will be void. 4 Comyn's Dig. '1 wit R: 3; Doughty's ease ; Jacksbn vs. Clark, 7 j. E. 223 ; Btange do' itld, CrO...Car. 447, 473 ; Jackson:Vs. LoOMis,. 18 J. R. 84. 'But if :Ole thing deseribedis sufficientlY aseertained, it 'shalI paSs, thotigh alr the particular deset :iptions be not true.. VOT examPle, if - a man convey . hiS house in D, which was in the Possession of R. C„ 'when in truth and in fact it was in the occupation of P. C., the grant nevertheless shall be gobd. 5 Bast, 51 Roe Vs. Vaumer.... For
• ' it 'Was sUffieleii4 deserihed by decrai:itig.. hat it .wa. s in the town of D. Hob. 171 ;' ;:firo. Bbr. drants 92. Where there is error: in
ARK.] DOE, 'ENDEM.,-PHILLIPS 9 HEIRS' v. BENJ. A: PORTER ETAT. 59. .. the principal' descriptiOn of the thingintended to be granted, though, thete be • 'no 'errOr 'in- the addition, , :hothing will pass:, , • Thus, . says „ Lord' BA• do-X, "if a person grants tenementura. suum: or oninia tener.: ri.enta Sica' • in the' 'parish 'of St. 'without Oldgate, when; . ,in truth,- it is withOut Bishopgate; tenura A; which is true,.
yet the grantwill 'be void; because, that.which sounds in.denomina, . tion is :falSO; s whiCh is the More worthy, and . 'that •Which sounds . in . additiOn is true, -which is the less. And though the words in tenura. Gulielmi A; Which is true,' had'been first ; plaCe•d, yet it had. been all
one." 3. 'Rep. 9 ;' Stu1iel9 Butler; . Hob. 171 . Doddingtonis Ow, Cd. Lit. 2', 32, 33.: Whe:re land§ ' at:e'first 'described generally, and •afterward. a par-. ticular deseription . added, 'that will restrain , and limit the general descriptiOn. Thus, if a 'man grants all his , lands in . D, .which he:, has by 'the gift andlfeoffment of J. S.-nothing will pAss, but the' . lands of the gift 'and feoffment of J:- S.,' 4. Comyn's Dig: '287.;
Cruise,'325 ;' 1 . J."C. H.. 210 ; 'Cruise; 225 ; Com.. 23 ; • Bottiis Burréll, M'ass. 1671. •Worthington vs . Ilylyer,. Mass. 205. • • • • • We will noW prOceed • •to Construe -the . deed, .oft-Phillips to . Ken- . driCk arid-Fisher d6a :ordhig to the'principles .herelaid :down and es-.
tabliShed. :The decd • does' not -create , either an express.dr 'an implied. covenanfth 'CoriVey otact'quahti6, of acres mentioned. in the first claUse of the seiit6ne'e,'utilesA' the terms,i`one other tract of laud-con-. taiiiing thre6htindred and sixty-six' acres;" constitute Such an agree-ment. • Rad the 'deed stopped'hore;Theie 'can , be but , little:doubt that the grAntot Would have' sold, andthe grantees have.taken . the exact . number 'of acrds;- aS- designated by. these generaLterms.;.,This..it. has.,
not • done; • but' it' proceds 'td' add' . other words 'of greater ce it a inty , and of more particular description, limiting and' itestricting , their,
general ineatrihg.' . The . 'grAni declares' the , ,premises- sold. to• .be, the' "said tradt of land 'WhiCh Niva:s COnveyed by William. Russell 'WI vanus Phillips, ty deed beating date the. 1 .3th. of. July; .1-825.'!. Then: . .
the land and' conveyed -to-!Kendrickand Fisher 'is the' same, identiCal • traCt • pnrehaSed- by Phillip's 'front -Russell by. deed 'bearing date • 13th Of aily,'1A.'D.'; r • H', :• Here; then;' the is first' described . quantity, .an&after7,.
60 Do; EX DEM., PHILLIPS 7 HEIRS V.-BENJ• A. PORTER ET AL [3 Wards by bOundary. That being the fact,- the deed-in question falls preciselywithiirthe-rule-that the q titystyieId th the boun-dary—because the latter description-contains greater certainty. and materiality. AgUin, a particular description cannot be limited by general expressions. In- the present instance, there is a general de-scription, and then follows 'a particular description of the, thing conveyed ; and where that is the case, and the two descriptions coniradict each'other, the particular description shall prevail. No one Can' doubt but that Russell's deed furnishes a more accurate and particular description of -the land conireyed than the simple affirmation that the tract contains 366 acres. Both parties fixed and agreed upon the metes and bounds of Russell's deed for the purpose o ascertaining the exact number of acres conveyed. .Ror if this was ndt the case, why did they refer to that deed, and recite it in the grant. By incorporating it' into their 'agreement, they made it a part of their covenant, and constituted it the governing consideration of their contract. It is no answer to this argument to say that Russell's deed to' Phillips lacked certainty in description, and therefore its recital in Phillips' deed to Kendrick and Fisher cannot render that certain which is in itself vague and doubtful. It is true that the deed conveys 335 town lots, a fraction of 18 acres, and 340 acres. The deed recited contains sufficient certainty to ascertain the quantity conveyed. The town lots are specifically de-scribed, and so are the 18 acre tract and the 340 acre tract. How then can the deed be said to want certainty in description ? The two tracts of 18 acres and 340 acres do not amount to . the 366 acrcs, but onlY to• 358 acres. Russell's deed therefore only. conveys 358 acres, and that being the case the' fraction of 3.82 acres cannot be
ncluded within the grant made by Phillips to Kendrick and Fisher of October 1, 1830. - The town lots mentioned in the deed recited are .surely not embraced in the term , "one other-tract of land," for in no point of view can it be considered us falling within that description or denomina-tion. It is surely not a legal consequence that because, Phillips was the owner of the entire residue of the Original tract of 640 acres, pf
ter deducting from it that portion out -of which the town of Helena was formed,- thattherefore he intended to convey. ,the whole of that
,DOE; EkDEM., PHItLIPS 'HEIRS v. BENJ. A:PORTER krin re‘g idile- to- KendriA and-FiShei, 'neither Ifee g` thiipositiOn folleW, or i- trengthened -by' the faefIhat 'the IWO deeds'of 13th'd
of 1st of August were recorded on the same daY; Io Wit : on 18th 'of 'Aiigñt, D.,"1825: ' deed-to . Kendrick 'arid Fisher, reeiting*Rnigell's deed'to him, does not refer to the-recording'Of that deed, birt t6 the day lipófi whichit wag exeCuted: The 'tiaCt .oflAnd conveyed'ia then definite-ly' 'described 'and asCertained by' RUssell' deed: The 'grantOr'in*d grantees are prbstimed to knew the eXaCt qUantity ofland 'contained Within the'liMits of Rus gell's deed, and they *both' relied 'upon the estiination therein eXpressed. 'The grantee pdfd the purehise inon-ey'for 'the inunber of acrea contained' in that deed; and the grantor parted with the premises there conveyed, addording to its metei and bounds:
In construing the deed froin Phillips to Kendrick and Fisher the :ourt is restricted to the grant' it gelf. FOiit ekm. tains no ambiguity or uncertainty upoh itS lace. The intention of the grantor niust be Collected-from. the face of 'the deed, and not irem'any other foreign 'or extraneous matter contradictinethaf deed. "The 'recital -of 'One deed in another binds the parties and those elaithing under them:" Technically speaking, it . operates as an estoppel, and binds parties and privies—privies ih blood, privies in estge, and privies in law. 1 Phil. Ev. 411 ; Comyn's Dig. tit. Evidence: B. 5 ; 1 Salk. 285 ; Jackson vs. Carver, 4 Peters, 83 ; 2 P. W'ms, 432 ; Willes 11 ; 1 Dallas, 67 ; Van Hoesen vs. Holley, 9 Wend. Here the grantor and grantee, and all claiming under either of them, are bound by the recital. This recited deed, then, fixes and ascertains definitely the precise quantity of land, or number of acres sold and conveyed by Phillips'deed, bearing date 1st of Oetober, A. D., 1830, to Kendrick and Fisher. That quantity consists of 358 acres mid not 366 acres ; and this being the case, it necessar.ily follows, from the facts admitted of record, that fractional C, as marked in the diagram, containing 3.82 acres, the land in dispute, was never, sold and conveyed to Kendrick and Fisher, and consequently, they having no right to the premises, had no power or authority to pass the title of it to the tenant in possession. The maxim then, caveat emptor, expressly applies to his ease, and he must look to his grantors for redress for the injury sustained'.
62 DOE, EX DEM., PHILLIps' HEIRS V. BENJ. 4. PORTER ET AL [3 The general ternis uged in Phillips' grant to Kendrick and Fisher Ara restrainckl , ankl-governed by the-recital-of Russell's , deed of 1-3th July, A. D., 1825., First, because the description by quantity, contains , mere w,ords
of explanation, or addition, And constitutes the , lowest degree of certainty .in Ascertaining, the land granted., ,• Secondly, because the general terms used in the deed are afterwards restricted and limited by ,an enumeration of particnlars that definitely described the , a.xact number of acres conveyed. And lastly, because both the grantor and the grantees haying re-cited, another deed in the grant, they, and all claiming under them, are estopped from denying or , questioning the conclitsions or boundaries of the recited conveyance. If the construction we have put upon the deed from Phillips to Kendrick and Fisher, of the . 13th ,July, A. D., 1825, be the true rule upon the subject, then it necessarily follows that the instructions given to the jury by the, court , below were evidently erroneous. Therefore its judgment pust be reversed with costs, and, a new trial awarded, and the ,cause remanded, to .be proceeded in •agree: ably to the opinion, hefe delivered.
•