
    Samuel Thayer, App’lt, v. George W. Finton, Resp’t.
    
    
      (Oov/rt of Appeals,
    
    
      Filed February 28, 1888.)
    
    1. Deed—Rules op construction—What passes under.
    Conveyances of real estate are to be so construed as to carry into efleet, the intent of the parties, so far as such intent can be collected, from the whole instrument. But nothing will pass by a deed, except what is described in it, whatever the intention of the parties may have been,
    2. Same—Material and certain parts control less material.
    A leading rule in the construction of deeds is, that what is most material and most certain shall control that which is less material, and that courses and distances yield to natural, visible and ascertained objects.
    3. Same—Ambiguity or imperfection—How explained.
    When ambiguity or imperfection exists in the description of lands contained in a conveyance, it is competent to refer to general language as well as to all parts of the deed to locate and identify the property intended to be conveyed
    4. Same—Quantity mentioned—When not controlling.
    When the quantity is mentioned in addition to a 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 numbers of lot if they do not agree.
    5. Same—When land outside boundaries does not pass.
    When a deed contains an accurate description by permanent boundaries capable of being ascertained, a general reference in addition, to the premises as in the possession of the grantor or grantee will not pass title to lands outside of the boundaries given.
    6. Same—What passes under deed.
    Previous to the making of the deed in question one .nun M. Thayer, the wife of plain tiff, owned and occupied the parcels of la. d theretofore purchased by her from Peter Coons and his wife. Two of these lots adjoined and constituted an improved and cultivated farm of eighty-eight acres of land, as appeared from a subsequent measurement, and the third parcel, the lot in dispute, was a wilduninclo.-ed and uncultivated wood lot situated at a distance from the other land, and containing about nine acres of land. The descrip ion contained in the deed in question read "All that tractor parcel of land * * * bounded as follows:" Then follows the boundary of the eighty-eight acres. “ Containing ninety-five acres and one-half acre of land be the same, more or less, being the premises now in the occupation of the party of the first part * * * and conveyed by Peter Coons and J one A., his wife to the said Ann Maria Thayer of the first part. ” Meld, that there was no indication in the deed that Thayer intended to convey these pieces of land, or any other land than that included in the description by boundaries.
    Appeal from a judgment of the supreme court, general term, fifth department, reversing the judgment in favor of plaintiff, entered upon a verdict rendered by a jury at the circuit
    
      M A Leary, for appl’t; Charles S. Baker, for resp’t.
    
      
       Reversing 37 Hun, 639, mem.
      
    
   Ruger, Oh J

The question in this case involves the title to a parcel of land, said to contain about nine acres, in the town of Barnngton. in this state, and depends for its solution upon the construction of the description contained in a deed dated April 11 1864, given by Samuel and Ann Maria Thayer to Stephen Eggleston.

The plaintiff claims -as tenant by the curtesy through his wife, Ann Maria Thayer, alleging that the lot was not transferred by the deed referred to; and the defendant asserts title thereto under a deed from Eggleston, plaintiff’s grantee which did describe the premises, and was given in 1867

It was held by the court at circuit that the deed to Eggleston did not describe the lot in question, and therefore did not convey title to the grantee. Upon appeal to the general term that court reversed the judgment and ordered a new trial, holding the description in the deed indicated an intention of the parties to pass title to the nine acre lot.

Previous to this conveyance Ann M. Thayer, the wife of plaintiff, owned and occupied three parcels of land theretofore purchased by her from Peter Coons and his wife. Two of these lots adjoined and constituted an improved and cultivated farm of about eighty-eight acres of land, as appeared from a subsequent measurement, and the thii'd parcel is the lot in dispute, and. was a wild uninclosed and uncultivated wood lot, situated at a distance from the other lands and containing, as afterwards appeared, about nine acres of land.

The description contained in the deed read as follows: “All that tract or parcel of land situate in the town of Barrington aforesaid and bounded as follows: on the north by lands of William Thayer; on the east by lands of Maryette Bain; on the south by lands of Benjamin F. Freeman, John Rinehart and Abraham Ferris, and on the west by the Crooked lake, containing ninety-five acres and one- half of land, be the same more or less, being the same premises now in the occupation of the party of the first part in Barrington aforesaid, and conveyed by Peter Coons and Jane A., his wife, to the said Ann Maria Thayer of the first part.”

It is not claimed on the part of the defendant that the boundaries contained in the deed do not describe a parcel of land clearly and'certainly ascertainable, or that the land in dispute is embraced in such boundaries, but it is argued that from the quantity of land mentioned and the circumstances that it is stated to be land conveyed by Peter Coons and wife to Ann Maria Thayer, it may be inferred that it was the intention of the parties to convey the wood lot as well as the lands described.

We are constrained to think that such a claim is untenable under the established rules of construction applying to conveyances of real estate. While it is the settled rule that such conveyances shall be construed so as to carry into effect the intent of the parties so far as such intent can be collected from the whole instrument, it is equally well settled that nothing will pass by a deed except what is described in it, whatever the intention of the parties may have been. Coleman v. Manhattan Beach Co., 94 N. Y., 229.

The question here presented is whether the parties intended to embrace the wood lot in the description given, or whether, having given a precise and definite description of land, the court is authorized from the inconclusive and indefinite language following the description, to infer an intention to convey another distinct parcel of land not referred to and lying at a distance from that described and confessedly not included within the boundaries given.

The rule as stated in the head-note of Jones v. Smith (73 N. Y., 205), seems to be of controlling force in the disposition of this question. It is there said “When a deed contains an accurate description by permanent boundaries capable of being ascertained, a general reference, in addition, to the premises as in the possession of the grantor or grantee will not pass title to lands outside of the boundaries given.” But little weight can be ascribed to a statement of the quantity of land in the deed as that is followed by the words “ be the same more or less," and, according to settled rules, cannot be held to affect the- quantity of land included within the specified boundaries when those are clearly and certainly ascertainable. Jackson v. McConnell, 19 Wend., 175.

The rule as stated in Jackson v. Moore (6 Cowen, 705) is as follows: “When the quantity is mentioned in addition to a 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 a mere description. The quantity being the least certain part of the description must yield to the boundaries or number (of lot) if they do not agree. ” This rule is peculiarly applicable to this case for the quantity of land is incorrectly described, whether the wood lot be held to be included in the deed or not, although the difference is greater in one event than the other.

A leading rule in the construction of deeds is that what is most material and most certain shall control that which is less material and less certain, and that courses and distances yield to natural, visible and ascertained objects. Arden v. Thompson, 5 Cow., 371; Jackson v. Moore, supra

It is not disputed that the boundaries contained in the deed are definite, unambiguous and certain, and describe a known and definite parcel of land, or but that the land described was in the posession of the grantors and was conveyed to them by Peter Coons and his wife, but it is said that it is not all the land thus conveyed and possessed by them. It is sufficient to say that the deed does not profess to transfer all of the land conveyed by Coons and wife to Mrs. Thayer, but it simply attempts to give additional particulars as to the property actually described, and which, so far as they are given, are correctly stated. By confirming the grant to the land included within the boundaries, meaning and. effect is given to all of the language of the deed except that relating to quantity which is comparatively immaterial, and the absurdity is avoided of supposing that parties intended to convey a distinct and separate tract of land, remote from the boundaries given, by using inconclusive and general language following a particular description. By the express language of the description the parties have set visible and known limits to the land intended to be conveyed, and it is not the province of construction to enlarge this description and embrace within it other lands not included therein.

A number of cases are cited in the opinion of the court below, but we are of the opinion that the principles laid, down in them were incorrectly applied to this case.

When ambiguity or imperfection exists in the description of land contained in a conveyance it is competent to refer to general language as well as to all parts of the deed to locate and identify the property intended to be conveyed. Such are the cases of Jackson v. Barringer (15 John., 471); Childs v. Ficket (4 Maine, 471); Marr v. Hobson (22 id., 321), and Grandin v. Hernandez (29 Hun, 399). So, too, where by proof aliunde the deed it is shown that no property, answering the description, belongs to the grantor at the place indicated, but other lands in the vicinity, corresponding in some particulars to such description, did belong to him, a latent ambiguity was created which may be solved by the further indications afforded by the deed or by extraneous evidence. The case of Grandin v. Hernandez, in one of its aspects, was of this character. We think the error of the court below consisted in the assumption that the description of the premises in question was ambiguous and uncertain, whereas there was not a suggestion on the trial but that the boundaries stated in the deed were capable of exact ascertainment and described precisely and" exactly two specific pieces of property conveyed by Coons and wife to Mrs. Thayer. There is no indication in the deed that Thayer intended to convey three pieces of land, or indeed any other land than that included in the description by boundaries.

A further claim is made by the respondent here that the plaintiff, being merely a life tenant, could not recover damages for waste to the land. It is enough to say that the point was not made on the trial and is not available.

The order of the general term should be reversed and the judgment at trial court affirmed, with costs.

All concur.  