
    John A. Muldoon, Resp’t, v. Jerusha Deline, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed October 4, 1892.)
    
    Ejectment—Parol evidence to explain deed.
    Where there is no ambiguity in the description in plaintiff’s deed, a defendant in an action of ejectment, holding under a junior deed from the same grantor as the plaintiff, cannot give paroi evidence of conversations and negotiations as to the land intended to be conveyed.
    Appeal from' judgment of the supreme court, general term, fourth department, affirming judgment for plaintiff.
    
      M. M. Waters, for app’lt; Geo. B. Warner, for resp’t.
    
      
       Affirming 39 St. Rep., 987.
    
   Earl, Ch. J.

This is an action of ejectment to recover a small triangular piece of land. The parties own adjoining lots and both claim under the same grantor, Burton. The plaintiff took his deed June 29, 1885, and. the defendant took his July 17th afterward. The land conveyed to the plaintiff is described in his deed as follows: “ Beginning in the easterly line of Bust street, forty feet north from the southerly line of lot No. 121 on said map, thence easterly at right angles to Bust street 153 feet to the southerly line of lot No. 137, thence northwesterly on the southerly line of lot No. 137 forty feet, thence westerly about 128 feet to the easterly line of Bust street to a point forty feet north from the place of beginning; thence southerly along the easterly line of Bust to the place of beginning.” It is conceded that this description includes the land in controversy.

The defendant upon the trial offered paroi evidence of the conversations and negotiations between Burton and the plaintiff, and of other circumstances, to show that it was not the intention of the parties to the deed to include therein the land in question, and that the first course in the deed should not run at right angles with Bust street, but diagonally so as to strike the southerly line of lot 137 forty feet from the southerly line of lot 121. There is no ambiguity in the description contained in the plaintiff’s deed. Every line can be surveyed on the ground just as it is given, and the grantor had the land. When the description is applied to the land no ambiguity is produced, and hence there is no room for paroi evidence. It is true that the intent of the parties to the deed must control. But that intent must be ascertained from the language contained in the deed. When, however, by applying the description contained in a deed an ambiguity is raised, evidence may be given to explain that, and if it be found that some particular of the description is false or defective, that may be rejected, provided the balance of the description when applied to the land is sufficient to show the intention of the parties. The rule in such cases is derived from the civil law, falsa demonstratio non nocet, cum de corjpore constat, and is fully explained in the leading case of Miller v. Travers, 8 Bing., 244, and in 1 Green-leaf’s Ev., 301. Here there was no patent or latent ambiguity, and no false description which within the rule could be disregarded.

The defendant in his answer did not allege any mistake and ask for a reformation of the deed. It is possible that there is a mistake in the descriptions contained in the deeds of both of these parties. If the defendant has any remedy it is by an action to reform the deeds, and to that action probably Burton, the grantor, would be a necessary party, and perhaps also Harrington, the grantee of the lot lying southerly of the plaintiff’s. With all the parties before the court in such an action paroi evidence might be given to show mistake, and if the defendant could clearly establish the mistake he might procure a reformation of the deeds, unless equitable considerations after the lapse of so much time, and changed conditions should impel the court to deny the relief. But in this legal action with these two parties only before the court the deeds as written must control.

There was no question of fact for submission to the 'jury and the verdict for the plaintiff was properly directed.

The judgment should be affirmed, with costs.

All concur.  