
    
      * Mary Worthington & Al., Executors, versus Asa Hylyer and Others.
    When the description of an estate intended to be conveyed 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 particular of the description ; but if the description be sufficient to ascertain the estate intended to be conveyed, although the estate will not agree to some of the particulars in the description, yet it shall pass by the conveyance, that the intent of the parties may be effected.
    This was a writ of entry brought in the county of Berkshire, by the demandants, executors of the last will of John Worthington, Esq., deceased, upon a mortgage deed made by one Azariah Ashley to the testator of the demandants, for securing to him the payment of I00Z. due to him from Ashley, according to a promissory note mentioned and described in the condition of the deed.
    Upon not guilty pleaded, the cause was tried before Bewail, J.,at Lenox, September term, 1806, and a verdict found for the tenants, subject to the opinion of the Court, upon the report of the judge who sat on the trial, which was as follows: —
    “ The evidence for the demandants in this case was a deed, dated April 15th, 1786, to John Worthington, the demandants’ testator, conveying ‘all that my farm of land in said Washington, on which I now dwell, being Lot No. 17 in the first division of lands there, containing 100 acres, with my dwelling-house and barn thereon standing, bounding west on land of Joseph Chaple, northerly by a pond, easterly by Lot No. 18, and southerly by Lot No. 19, having a highway through it.’ ”
    Also the testimony of John Lancton and Zenas Noble, by whom the following facts were proved, viz., that from 1782, to the date of the mortgage deed, and afterwards, Azariah Ashley lived in a house upon the easterly side of the county road, where the defendant Hylyer now lives, upon a tract of land latterly known by the name of the Hylyer farm, but formerly by the name of Granger’s Grant; that opposite to this tract, and separated from it only by the county road, lies a tract of land distinguished and known as Lot No. 18, and adjoining to that, farther west, is another tract, distinguished and known as No. 17, in the division of said township by the proprietors ; that these three adjoining tracts of land, excepting the separation by the county road, were, at the date of the mortgage deed declared on, the property and in the occupation of the said Ashley; that the said Lot No. 17 is bounded westerly on lands of Chaple, northerly *by a pond, easterly [*197] by Lot No. 18, and southerly by Lot No. 19; that, in 1786, there was no road through No. 17, excepting a foot path, in which the neighbors were accustomed to travel; that, 16 or 17 years since, a town road had been laid out and established through No. 17; that some part of No. 17 had been cleared before the year 1780; but that no improvements have been made upon it since that time; that a great part of it is unimprovable, and of no value but for rocks and sand ; and that this lot was not worth in 1786 one dollar per acre, and is not at this time worth more than one dollar and fifty cents per acre.
    The parties agreed that, at the time the said deed was executed, John Worthington, the grantee, lived at Springfield, in the county of Hampshire, that the deed was executed there, and is in his handwriting.
    The tenants, on their part, gave in evidence a deed by Azariah Ashley, dated September 6, 1793, acknowledged and recorded the same day, by which, for the consideration of 300Z., as therein expressed, he conveyed to Israel and William Ashley, in fee simple, a tract of land, part of a tract granted to Daniel Granger, and is that part on which the dwelling-house of the said Azariah then stood. And it appeared from the testimony further adduced in the case, and from the admission of the parties, that the said Israel and William, two of the defendants, were the cousins of the said Azariah, and that the said Hylyer, the other defendant, is the tenant of the said Israel and William, upon the premises conveyed to them by the deed last mentioned, being the same dwelling-house and farm occupied b) the said Azariah on the 15th of April, 1786, and described by the demandants in their writ.
    The demandants offered to show further, by testimony, that Azariah Ashley, in his lifetime, declared that the consideration of the said deed to the said Israel and William was not 3007., as therein expressed, but 1007. only. The judge refused to admit that evidence, and directed the jury to find a verdict for the tenants, which was taken, subject to the opinion of the Court, as aforesaid. And it was agreed that if it should be their opinion that the [*198] demandants ought*to recover the demanded premises in this action, the verdict should be set aside, and a verdict entered for the demandants, or a new trial granted, as the Court should order, 
    
    The action stood continued to the last September term in Berkshire, and from thence was continued nisi. In the interim, the counsel submitted their arguments in writing to the Court, to the following effect: —
    
      Williams, of counsel for the tenants.
    The demandants claim in their writ a tract of land heretofore known as Granger’s Grant. But their action is founded on a mortgage deed conveying to their testator the lot numbered 17 in the first division, the boundaries of which are particularly and correctly described in the deed; and these boundaries are such as cannot be removed or changed; and as to one of them especially, viz., the pond on the north side of the lot, it is impossible to be mistaken. The lot conveyed is described as containing 100 acres of land.
    To construe this deed so as to enable the demandants to recover, we are compelled to adopt several circumstances entirely repugnant to the deed. The demandants claim, by their construction, the whole farm, consisting of three lots of 100 acres each; this is repugnant to the deed, for that conveys but one lot, consisting but of 100 acres. They claim * the Granger [ * 199 ] Grant. The deed gives Lot No. 17 in the first division of lands there, and it gives no more, because it states in what manner Lot No. 17 is bounded. The lot conveyed by the deed is not the Granger Grant, for that is not bounded by á single descriptive boundary set out in the deed. The land described in the deed is a known lot “ in the first division of lands there,” and lying west of Lot No. 18, and north of No. 19, bounded on the west by Joseph Chaple’s land, and on the north by a pond.
    But the demandants may say that the deed conveys “ all that my farm.” To this we answer, that this must be understood as all that part of my farm,; for it is in evidence that the grantor owned three lots, making dOO acres ; and as the deed conveys only 100 acres, it can be held to convey a part only, and not the whole of the farm. It also precisely designates that part to be Lot No. 17, and that only, for it fixes the boundaries on every side.
    The demandants may rely on the expression in the deed, “ that my farm, on which I now dwell.” Still we say it can mean nothing more than that part of the farm particularly described, on which farm the grantor dwelt. They may rely, too, on the expression in the deed, “ with my dwelling-house-and ham thereon;” but this we contend, too, is but descriptive of the whole farm, a part of which was conveyed. The demandants’ testator was a very eminent lawyer, and well knew that a grant of land conveys all the buildings upon the land; and that a grant of buildings does not affect the conveyance of the land on which they stand.
    It is impossible that this deed should take effect exactly conformable to the letter. In such a case, Lord Colee lays down this rule: “ The law shall make such construction as the gift by possibility may take effect.”  The letter of this deed conveys only 100 acres ; t conveys only Lot No. 17; it conveys a lot bounded northwardly on a pond. Must we, then, (because the expression, “ with my house and barn thereon standing” is used,) leave all the known boundaries, leave the lot particularly numbered, and, passing from that, go over another distinct lot, and say the land con-[*200] veyed is * the Granger Grant, which lies east, instead of west, of No. 18, and is no part of “ the first division of lands there,” but was always before, and at the time of the execution of this deed, known by this appropriate name? Shall it be still further said that not only this lot, called Granger’s Grant, ot 100 acres, is conveyed, but two other lots also, containing other 200 acres, although the deed expressly describes the land granted as consisting of 100 acres only, and that lying west of one of those other lots ?
    The registry of deeds, as required by our laws, is not merely for the security of the parties ; for the operation of a deed is the same, as respects the grantor and grantee, whether it is recorded or not. The principal object contemplated by the law, is the security of after purchasers. Hence it may be argued that the present tenants are entitled to a protection in their purchase, which the original mortgagor perhaps could not claim. Before that purchase, they, as prudent men, examined the records of deeds ; they there found this deed conveying 100 acres, described as Lot No. 17, bounded by known and immutable boundaries, and lying west of Lot No. 18. They could never imagine that by any construction this deed would be held to pass the Granger Grant, lying east of Lot No. 18, and they thereupon became the purchasers.
    As to the evidence given of the value of Lot No. 17, we consider it wholly irrelevant, and think that it can have no operation in the decision of this question. Had the value of that lot been at this day 1200 dollars, and that of the Granger Grant but 150 dollars, we should never have heard of this action; nor would the Court have been called on to countenance a construction which changes the lot described in the deed into a tract admitting of no part of the boundaries contained in the deed, and lying east, instead of west, of a third well-known tract of land —a construction which, if adopted, will make it inexpedient for any one hereafter, who may be treating for the purchase of an estate, to rely on the records, in order to ascertain whether such estate is or is not included in a prior conveyance.
    * Ashman for the demandants.
    The case stands exactly as if the parties to the action were Worthington, the mortgagee, and Ashley, the mortgagor. The latter, having undertaken to mortgage to the former, cannot defeat the title under the mortgage. The rules of construction, applicable to deeds and grants, cannot be varied for the convenience or interest of parties Did Ashley convey the demanded premises to Worthington ? The law will answer this question by applying its rules of construction to the deed produced, without inquiring who are the parties that ask it. The effect and operation of the deed must be determined from the deed itself, the contents of which were as well known, through the records, to the present tenants as to the original parties.
    To say that the tenants are in a better situation than Ashley himself would have been in, admits that Ashley conveyed the land ; since, in a case like this, there is no middle ground between conveying and not conveying. If Ashley’s mortgage did convey this land as against himself, it did also as against the tenants, and they can have acquired, by their subsequent deed, nothing more than Ashley’s right of redemption. If the first deed did not convey this land, the demandants could not support this action against the tenants, who were in possession ; and, if it did so convey, the tenants could not avail themselves, by producing a deed of subsequent date and registry. It would be contrary to justice and common sense, as well as law, to permit a man, by his own act, by first using ambiguous language, and then conveying again, to defeat his own grant;  and it would be equally absurd to permit subsequent purchasers to avail themselves of that act, by showing their own ignorance or negligence. Nor is there any hardship in their case, since they have their remedy against the person whose deed they chose to take under such circumstances. No case is recollected in the books, in which it has even been advanced by counsel, much less held by the court, that a subsequent adversary purchaser stands in a better situation than a first, when the title to an estate rested on the construction of a deed.
    * Had the deed in this case purported an absolute [ * 202 ] conveyance, the consideration expressed might have been different from the true one, and it could not have appeared to the Court that Lot No. 17 was not worth the money actually paid. But here the deed, and the note, which accompanies it, show conclusively the money paid, and the evidence was, that this sum exceeded the value of that lot more than two thirds. This fact will aid in ascertaining the intent of the parties to the deed. That intent was to secure the payment of the money mentioned in the condition of the mortgage. No. 17 was inadequate; the grantor had other lands adjoining, which are mentioned, if not granted, in the deed. The “ dwelling-house and barn [were] thereon standing.” These words could not be introduced to aid in describing Lot No. 17, for the house and barn were on another lot. Why not pledge this other lot together with No. 17, when the mortgagor could at any moment, by paying the debt, redeem the whole ?
    But if this deed is to receive the same construction as if it were an unconditional one, still we contend that the demanded premises passed by it.
    Grants are to be construed according to the intention of the parties ; and if there appears to be any doubt or repugnancy in the words, such construction is to be made, as is most strong against the grantor, because he is presumed to have received a valuable consideration for what he parts with.  And this intention is to be collected from the deed. 
    
    What, then, appears to have been the intention of the parties to this deed ? It does not lie in the mouth of these tenants to say that Ashley intended to make the mortgagee believe that he was receiving the whole farm for his security, while only apart, and that of small comparative value, was conveyed. If he is to be considered as acting honestly, he intended to convey the whole. If no trick was designed to be practised, it is apparent that what follows, “ all that my farm on which I now dwell,” was intended as merely descriptive of what was before granted, which was all the [*203] farm* on which the grantor dwelt. Now, whether this description is true or false, is immaterial. That a part of it is false, if the tenants are permitted to show it, there can be no question ; but the most important part of it is true. It was false (if such is the language of the deed) that the farm consisted wholly of No. 17. But the deed immediately goes on, “with my dwelling-house and barn thereon ” (i. e., on the thing granted, the “ farm ”) standing. This part of the description is true, and cannot mislead. A man might not know the number of his lot, upon whose land it abutted, or the number of acres it contained ; but he could not mistake his dwelling-house and barn for any thing else in existence. Of the same nature is the clause in the description, “ having a highway through it,” i. e., through the same “ farm.” It is both true and distinguishing, and well calculated to ascertain the thing intended to be granted, beyond a doubt. A highway is a very distinct thing from such a foot path as we find on Lot No. 17. There can, then, remain no doubt that the whole farm was included in the mortgage, unless from the expression which follows the grant of the farm, “ being Lot No. 17.” For all that comes after this, which is not truly and correctly referable to the whole farm, to take it most favorably for the tenants, is but descriptive of that lot. But that lot was before sufficiently described as “ No. 17 in the first division.” The farm is the thing expressly granted, and the mistake or falsehood in the subsequent description of it cannot affect the grant. This principle is laid down in all the authorities. 
    
    The case at bar is very distinguishable from Doddington’s case. 
       That was a grant of “ omnia ilia messuagia, Spc. in tenuris J B. 6p al. scituat. in civitate W.,” and in truth the lands were situate in D. There were no lands in W., to which place the grant was restrained, for the grant to .operate upon. And that case was said to be the stronger by reason of the pronoun ilia, which was not satisfied until the sentence was ended. Here it is otherwise ; for if the question be asked what is meant by “ all that farm,” the grantor immediately * answers, “ It is the one on which I now [*204] dwell; ” and the report shows that the demanded premises are a part of that farm.
    All the parts of the description in the deed ■ cannot be true, whether the whole farm is conveyed, or only Lot No. 17. But the boundaries given apply as well to the whole farm as to No. 17, except where it is said, “ easterly on Lot No. 18 ; ” and if we consider this a mistake, it will be the only circumstance (for the quantity of the land may be laid out of the case)  in the whole description, which may not consist with the idea that the whole farm was granted, except its being called by the grantor Lot No. 17. And the Court will give such construction to the deed, as will best reconcile its several parts, and effectuate the honest intention of the parties.
    The word “ being,” which is said to connect the former and latter part of the description in this deed, cannot have more force than a videlicet, which destroys the grant, and which, in such case, would be void, being repugnant to the thing first granted.  Thus, in the case of Süikely vs. Butter, 
       where S. bargained and sold “ omnia ilia hoscos, subboscos, &c., then standing, growing, and being upon, the whole of his manor of Cleave, viz., upon, &c.,” mentioning five groves by name, the viz. was held to be utterly void. The same rule is applied in pleading.
    The case of Conolly vs. Vernon Sp Al., 
       though not directly in point, fully recognizes the principles necessary to support the present action. It is there expressly laid down, that “ when there is a grant of a particular thing, once sufficiently ascertained by some circumstance belonging to it, the addition of an allegation mistaken or false respecting it, will not frustrate the grant.”
    The tenants in this case are not aided in their construction by Lot No. 17 being a part of the farm on which Ashley dwelt. If they would add words to diminish from the grant, and read “ all that part of my farm,” &c., yet the phrase “ with my dwelling-house and barn thereon standing ” is so coupled with the pre- [ * 205 ] ceding matter, as to make the addition * absurd ; because those buildings did not stand on Lot No. 17, as this in terpolation would make them.
    
      
       The following is a rough sketch of the situation of the several lots mentioned in this «port: —
      
        Chapin’s Land.
      
      A. The demanded premises, or Gran ger’s Grant.
      B. Lot No 17.
      C. Lot No. 18.
      D. Lot No. 19
      1. 2. Dwelling-House and Barn.
      
        
      
    
    
      
      
        Co. Lit. 183, b.
    
    
      
      
        Com. Dig Grant, F.
    
    
      
       2 Bac. Abr. 665.
    
    
      
      
        Cowp. 9, Moore vs. Magrath. — 1 Mass. Rep. 223, Bridge vs. Wellington, 2 Bac Abr 660.
    
    
      
      
        Com. Dig. tit. Deed, E. 4, Grant, E. 13. — 3 Rep. 10, Dowtie’s case. — 2 Bac Abr. Grant, H.
    
    
      
      
         2 Rep. 32.
    
    
      
      
        Com Dig. Fait, E. 4.
    
    
      
      
        Bac. Abr. Grant, I.
    
    
      
      
        Hob. 168.
    
    
      
       5 East. 51.
    
   And now, at this term, the opinion of the Court was thus delivered by

Parsons, C. J.

[After a brief abstract of the facts reported oy the judge.] If the description in a conveyance be so uncertain, that it cannot be known what estate was intended, the conveyance is void. But in a deed poll, where there is a doubt, the construction must be against the grantor; and every deed ought to be so construed, if it can, that the intent of the parties may prevail, and not be defeated.

It seems to be a general rule, that when the description of the estate intended to be conveyed 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 particular of the description. Thus, if a man grant all his estate in his own occupation in the town of W., no estate can pass, except what is in his own occupation, and is also situate in that town. ■

But if the description be sufficient to ascertain the estate intended to be conveyed, although the estate will not agree to some of the particulars in the description, yet it shall pass by the conveyance, that the intent of the parties may be effected. Thus, if a man convey his house in D., which was formerly R. C.’s, when it was not R. C.’s, but T. C.’s, the house in D. shall pass, if the grantor had but one house in D., because, by the description of his house in D., the estate intended to be conveyed is sufficiently ascertained.

Let us apply these rules to the case before us. The mortgagor has described, as the estate to be conveyed, all that his farm of land in Washington, on which he then lived, containing one hundred, acres, with his dwelling-house and barn thereon standing. This description is sufficient to ascertain the estate intended tobe conveyed ; and if no other particulars were inserted, there could be no doubt. But he adds that the farm on which he lived was the Lot No. 17, in the first division of lands there, and included within certain limits mentioned. The limits of this lot are truly described, but [ *206 ] in fact the farm on which he * lived was not No. 17, but a different parcel of land. By the rule, then, this particular of the description is to be rejected, because without it the description is sufficiently certain; and because, if it be considered as an essential part of the description, the deed will be void. For by no construction can Lot No. 17 be considered as conveyed, to the exclusion of the farm, as the lot is mentioned as descriptive of the farm, and not the farm as descriptive of the lot. Indeed, rather than the deed should be deemed void, a construction ought to be adopted, on which both the farm and the lot should be conveyed ; for a farm, on which the mortgagor then lived, is certainly intended to be conveyed ; and the lot is also bounded as descriptive of, and may therefore be considered as part of the premises.

But, on the first ground, we are satisfied that, the description of the farm by a false reference to the lot must be rejected, because without that description the farm is sufficiently ascertained.

Let the verdict be set aside, and a general verdict that the said Hylyer is guilty in manner and form as the plaintiffs have declared against him be entered. Judgment for the demandants must be rendered as on a mortgage, 
      
      
         [Thatcher vs. Howland, 2 Metc. 41. There was, certainly, room in this case to entertain the questions, whether the language, descriptive of the premises, does not constitute one entire description; and if any part can be rejected as immaterial, whether the particular description, by reference to the lot or division of lands and precise boundaries, should not prevail over the more general language. Thomas’s note to Doddington's case, 2 Coke, rep. by Thomas, 33, a, note A. — 3 Prest. Abst. 207 —8. — Steele vs. Channell, 6 Taunt. 145. — Doe, dem. Smith, vs. Galloway, 5 B. & Ad. 51 — Boardman and Others vs. Lessees of Reed & Al., 6 Peters, 345. — Ed.]
     