
    Daniel C. Case, Resp’t, v. Wealthy Dexter et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed October 4, 1887.)
    
    1. Deed—Construction of—Descriptive words.
    The rule that in construing the language of a written instrument the whole is to be considered in order to ascertain its true meaning and intention, is as true in respect to the descriptive words in a deed as of other parts of the instrument.
    
      2. Same—When words mat be supplied.
    Where the description is ambiguous, or there is inconsistency in the several particulars, words, if necessary, may be supplied by intendment and particular clauses and provisions qualified, transposed or rejected in order to ascertain and give effect to the intention. Following Hathaway v. Power, 6 Hill, 455.
    3. Same—Variance between actual and estimated quantitt of land.
    Variance between actual and estimated quantities of land is not usually a material circumstance, but it may, in some cases, be an important element in determining the intention of the parties to the grant.
    Appeal from a judgment of the supreme court, general term, fourth department, reversing the judgment entered upon tho verdict of a jury, directed by the judge, at the Pulaski circuit, and ordering a new trial. The facts appear in the opinion.
    
      S. W. Dada, for app’lts; Giles S. Piper, for resp’t.
    
      
       Affirming 35 Hun, 663, mem.
      
    
   Andrews, J.

—The case as presented raises the single question whether the defendant, Wealthy Dexter, in February, 1882, when the alleged trespass was committed, was the owner of the locus in quo a parcel of land containing about seven acres, lying on the northerly side of Fish Lake in the town of Granby, Oswego county, being part of lot 3 of the original township of Lysander. Her title to the premises, if any, is derived through intermediate conveyances from one John L. Norton and others, who on the 1st day of November, 1839, conveyed to Richard Smith certain premises described in said deed as “all that certain piece or parcel of land situate, lying and being in the town of Granby in the county of Oswego, known by being lot number three (3) in the original township of Lysander, lying southerly or south-easterly of Fish Lake lot, supposed to contain sixty-seven acres of land.”

The plaintiff claims title to the seven acres, under a deed from Asa Phillips and wife to Bradford Kennedy and Abraham Howe, dated January 24, 1862, which purported to convey to the grantees, “all that part of lot 3 in the original township of Lysander (now Granby), lying on the northerly side of Fish Lake, and adjoining lot 75 of the original township of Hannibal.” It is inferable from the evidence that at the time of this conveyance the grantees owned a tract of land on lot 75, Hannibal, which together with the land embraced in the deed from Phillips, was subsequently, in the year 1877, conveyed to the plaintiff. It does not appear that there has ever been any actual possession of the land on lot 3, Lysander, lying north of Fish Lake, under the Horton title.

The defendants proved that in or about 1854, James Qnderkirk, one of the intermediate grantees under that title went upon the land and cut sticks for “ox bows,” and again in 1862 or 1863, and “looked around,” that he asserted to various persons at different times that he owned the land, and that in 1878, the defendant John Onderkirk got “sassafras ” on the land. But these and a few similar circumstances proved, fall far short of showing actual possession of the land north of the lake by the defendant Wealthy Dexter or her grantors. It is on the contrary substantially undisputed that from 1862, Kennedy and Howe and their grantors have been in the actual possession and occupation of the seven acres using it in connection with lands on lot 75, Hannibal, for pasturage and other farming purposes. The only actual possession under the Horton title has been of the part of lot 3, lying south of Fish Lake, which as the map approximately shows, and as the plaintiff offered to prove, contained about sixty-seven acres of land. Lot 3 contains 600 acres of land, all of which is covered by Fish Lake, except the sixty-seven acres lying south, and about seven acres, in controversy, lying north of the lake. Heither party traces title to the state.

The case was tried on the theory that the rights of the parties turned upon the questions, first, whether the seven acres on the north side of the lake were included in the Horton deed; and, second, whether the deed to the defendant, Wealthy Dexter, was void for champerty.

If the first question is decided adversely to the defendants, the consideration of the second one will become unnecessary. The defendants rest their claim of title under the Horton deed upon the proposition that as that deed includes in its descriptive words “all that piece or parcel of land known as being lot Ho. 3,’’and as it is undisputed that the seven acres are within the boundaries of that lot as laid out and surveyed, it is a necessary conclusion that the deed conveyed the premises in controversy. It will be observed that this construction ignores all the subsequent descriptive words in the conveyance. It disregards the words in the deed locating the land conveyed as situated “on the southerly side of Fish lake,” and the words “ describing the quantity of land,” and the further description, “commonly called the Fish Lake lot, supposed to contain sixty-seven acres of land,” and the further description, “commonly called the Fish Lake lot,” which, the plaintiff offered to show, was understood as designating the sixty-seven acres lying south of the lake. All these particulars, upon the construction insisted upon by the defendants, are to be rejected as false, and as being inconsistent with the primary words of description, which include the whole of lot 3. The statement of the supposed quantity, it is insisted is to be treated as a mistake, and it is assumed that the grantors intended to convey a tract of 600 acres (including the part covered by the lake), instead of a tract of sixty-seven acres, as expressed in the deed.

We think the contention of the defendants is obviously untenable. In construing the language of a written instrument, the whole is to be considered in order to ascertain its true meaning and intention. This is as true in respect to the descriptive words in a deed as of any other part of the instrument. Where there is obscurity or uncertainty, all of the particulars in the description are to be taken into account in arriving at the intention, and in the deed in question the particulars describing the location of the land, the quantity, and its commonly known designation, are as much a part of the description of the subject of the conveyance, as is the designation of the lot number. It is a familiar rule in the construction of a deed that where the description is ambiguous, or there is inconsistency in the several particulars, “Words, if necessary, maybe supplied by intendment, and particular clauses and provisions qualified, transposed or rejected, in order to ascertain and give effect to the intention.” Beardsley, J., in Hathaway v. Power (6 Hill, 455.)

What words or clauses shall be rejected or qualified in •case of uncertainty, is frequently determined by giving effect to those parts or clauses of the description which are most certain, and to particulars in respect of which the parties would be least likely to have made a mistake. For this reason, by the general rule of construction, monuments control courses and distances, and estimates of quantity are usually subordinated to both. Baldwin v. Brown, 16 N. Y., 359.

The rule that fixed monuments, whether natural or artificial, should usuaEy be given preponderating weight, is obviously reasonable. Variance between actual and estimated quantity of land is not usually a material circumstance, but it may in some cases be an important element in determining the intention of the parties to the grant.

In the present case, there are very significant circumstances showing that it could not have been the intention of the parties to the Norton deed to convey lot 3 as an entirety. The lines of the lot, if originally indicated by monuments or marked lines, may have been lost or obliterated. The description of the land conveyed as lying “southerly or southeasterly of Fish Lake," refers to a natural monument or physical situation which was ascertainable by view.

The estimated or “supposed" quantity, sixty-seven acres, is so disproportionate to the quantity contained in the whole of lot 3, that it would have at once arrested the attention of the parties if the conveyance of the whole lot had been intended. We have no hesitation in reaching the conclusion that the part of the description referring to the land intended to be conveyed as “lots," is mistaken or false. It is much moi’e consistent to suppose that the words “on," or “part of," were omitted by inadvertence, than that the parties inserted the other parts of the description by mistake. And if there was any doubt, upon the proof as it stands, of the intention of the parties, the court erred in rejecting evidence of what was known by common reputation as “Fish Lake Lot." This is not the case of cutting down an interest or estate once clearly given, by subsequent indefinite or ambiguous language. All the language in the deed, to which we have referred, is a part of a single description, and the sole question is, what land is embraced therein ?

In the view taken, the question whether the plaintiff has acquired title by adverse possession, if without title otherwise, is unimportant.

We think the order for a new trial was properly granted, and it should, therefore, be affirmed, and judgment absolute be directed for the plaintiff upon the defendant’s stipulation.

All concur.  