Parks v. Watson

Supreme Court of Missouri
Parks v. Watson, 29 Mo. 108 (Mo. 1859)
Ewing, Napton, Remanded, Scott

Parks v. Watson

Opinion of the Court

Napton, Judge,

delivered the opinion of the court.

The sheriff’s deed, which we are called upon to interpret in this case, in pursuance of the words of the levy, advertisement and sale, conveyed “ all the right, title and estate” of Langham in “ sections twenty-seven and twenty-eight” (township and range being specified) and in several other pieces of land, all of them, including these sections, being enumerated in the deed from Samuel to Owens and McDonald, and proceeds with this further description: “ Being the same property conveyed by Jamison Samuel and wife to Angus McDonald and Kennedy Owens, by deed dated 28th June, 1839, and recorded in recorder’s office of St. Charles county, in book 0, p. 351 and 352.”

The deed from Samuel to McDonald and Owens, thus referred to, does not convey the entire sections twenty-seven *112and twenty-eight, but only three quarters of them, excluding from its operation an undivided fourth of the two sections previously conveyed by the grantor to George Shannon. It appeared from another instrument of writing also on the record, that Langham was equally interested with McDonald in this purchase made from Samuel, and that it was through inadvertence or mistake that his name was omitted in the deed. These deeds showed that at the date of the sheriff’s sale, heretofore adverted, to, Langham had one-fourth of three-fourths of the two sections, deriving his title from the conveyance of Samuel to McDonald and Owens, referred to in the sheriff’s deed.

Previously to the sale from Samuel, the original proprietor, to McDonald and Owens, as appears from the recitals in the deed to these persons, as well as by the instrument of writing itself by which it was effected, Samuel had conveyed to George Shannon a fourth part of these two sections, which “ was to be selected on one of the outer lines of the entire tract, and was to be in one body and in due proportion to the figure of the whole body of the said land.” This title, by conveyances and mortgages, had been, at the date of the sheriff’s levy, entirely vested in Langham.

Langham was then, at the date of this sheriff’s sale, the owner of one-fowrth of these sections by a title derived from the deed of Samuel (the original proprietor) to Shannon, and of the fourth of the other three-fourths by conveyances based upon the deed from Samuel to McDonald and Owens.

The question in this case is whether the sheriff’s deed conveyed both these interests, or only the interest which he held under a derivative title, based upon the deed to McDonald and Owens, particularly referred to in the sheriff’s deed.

There is something on the face of the sheriff’s deed as well as his levy and advertisement, which seems to convey the idea that Langham was not the owner of the entire sections twenty-seven and twenty-eight. No one, we think, could read the sheriff’s advertisement and take up such an impression from its phraseology. It seems to be implied, by *113the use of the words “ all his right, title and interest,” as well as by the diffuse or extended, description which follows, that he was not and did not pretend to be the owner of the entire tract of land indicated by sections twenty-seven and twenty-eight. It is clear that the sheriff did not so regard him, for, if he did, it is impossible to account for the unnecessary circumlocution employed by the sheriff to describe a thing at once so simple, plain and easy to be expressed.

This being the general impression conveyed by the sheriff’s- description, the question would naturally arise with those who proposed to bid or to buy, what is the interest which Langham has in these two sections, and which it is proposed by this advertisement to sell ? The answer to that by the sheriff is, “being the same property conveyed by Jamison Samuel and wife to Angus McDonald and'Kennedy Owens, by deed dated,” &c. This deed shows that only three-fourths of the two sections were conveyed by it, and if Langham’s title was based upon it, his interest could not exceed that proportion of the whole tract. This deed, it is true, does not use Langham’s name, nor was it material that it should, for a reference to the public records, just as accessible as this deed, to which purchasers were referred, would show that Langham had one-half of McDonald’s interest. The mere reference to the deed by the sheriff would be sufficient to advise any one that Langham’s interest had its source in that title; for, if it had no connection with it, such a reference to it would be a mere absurdity, unless we adopt the suggestion that it was designed to be a more perfect description of sections twenty-seven and twenty-eight. This last suggestion is not entitled to much weight, and involves the extremely improbable supposition that the officer supposed he could, by any amount of circumlocution, make a description of a section of public land clearer than a simple enunciation of its number would make it. But the deed is evidently referred to for no such purpose, but to show the quantity of title he was selling and its origin.

In interpreting,written instruments of every kind, courts *114must resort and invariably have resorted to extrinsic circumstances. The situation and surroundings of the person whose deed or will is under examination, and of the subject matter affected by the paper, will necessarily enter into the consideration of a cotirt in determining the intent of the instrument. We must place ourselves in the condition of the person writing to understand what he means and intends. Hence cases upon the construction of written instruments can not go far as precedents, and do not usually throw much light upon other cases. A very minute circumstance or expression will change the whole force of a paper, and each case, after all, is settled by its own circumstances.

In reaching the conclusion, however, which we have done in this case, we do not consider that it is unsupported by authority. On the contrary, we think the weight of authority sustains us, and we are not prepared to admit that any of the decided cases necessarily conflict with the view we have taken of the case. Some of the cases appear to conflict, probably do conflict, but most of them are reconcilable, and the apparent diversity grows out of really different circumstances, and a resort to different rules of interpretation. Sometimes the general intent of an instrument is quite apparent, and courts, in such cases, disregard details conflicting with such general intent; sometimes one rule of interpretation is chiefly relied on, properly so in the case, whilst in another, with equal propriety, another maxim is resorted to for the purpose of elucidating the intent.

It is not proposed to review the authorities in detail; but we refer to a few of them to illustrate our views.

The case of Sheppard v. Simpson, 1 Dev. 242, is very much like this case in all its particulars. There the sheriff’s deed conveyed “ all the interest” which the defendant in the' execution had to a certain tract of land, describing it, and then the language of the deed is: “ Being the land devised to C. S. by his father D. S., and the undivided share of the 'said C. S. in the lands of his deceased brother J. S.” This deed was held to pass only the interest derived by 0. S. from *115his father and his brother, although, at the date of the levy, advertisement and sale, the defendant in the execution owned the entire tract of land described by the will of his mother. The case is not distinguishable from the present, and some observations made by the judge who delivered the opinion of the court in that case may be transcribed as applicable to the present. “ It is of great importance,” said Judge Taylor, “ to the public, that the land sold at a sheriff’s sale should be so specified and defined that every person attending may know what price to bid, and to be under no doubt as to the land he is bidding for. If the whole of C.’s land passed under this deed, it would give an undue advantage to those bidders who were apprised of the true state of the title, and enable them to purchase the whole tract, while others were regulating their bids by the belief that nothing more than the land described by the sheriff was set up for sale.”

The cases of Barnard v. Martin, 5 N. H. 534, and Allen v. Allen, 14 Maine, 887, are cases of voluntary conveyances, where general terms of description — as the word homestead, .house, farm, &c. — are restricted by subsequent special boundaries. They are in accordance with the cases quoted from North Carolina.

The case of Northington v. Hillyer, 4 Mass. 205, is decided upon its own peculiar circumstances. It was a case in which the general intent of the grantor was most manifest, and the court would not permit an additional particular description, calculated to throw obscurity over -the entire deed, to defeat the main purpose of the parties to'it; and it was therefore rejected as false description. That was not a sale by an officer under judicial process; and, if it had been, it is not clear that the court would have come to the same conclusion. (Mason v. White, 11 Barb. 174.)

The cases of Wheeler, adm’r, v. Randall, 6 Metc. 532; Thatcher v. Howland, 2 Metc. 41; Elliott v. Thatcher (reported in a note to this last case), and Melvin v. Prop. Locks, &c., 5 Metc. 15, are cases in which the general intent of the deed to convey all the property first described is thought to *116be so plain as to authorize and require the courts to disregard subsequent clauses apparently restricting the operation of the deeds. They are all based upon the maxim, falsa demonstratio non nocet. The case of Elliott v. Thatcher, like that of Northington v. Hillyer, is a case of plain mistake in the additional descriptive words used; and to give, them their full force or make them restrictive would be against the plain general intent of the deed. These cases are entirely reconcilable with the decisions in North Carolina and New Hampshire, although the case of Melvin v. Prop. Locks, &c., 5 Metc. 15, may not be, and was at all events not so thought to be by the judges who decided it.

We proceed, in this case, upon a cardinal rule of interpretation, that effect is to be given to all the words of a written instrument. If the words are restrictive, then the grant will be restrained within the limits of the restrictive clause, if by so doing we can make it available. If the restrictive terms have nothing to operate on, they must be rejected as insensible. (Shepherd’s Touch. 247.) We may believe, from the circumstances of the case, that if the sheriff had known of Langham’s interest under Shannon he would undoubtedly have sold it, as well as that based upon the title under McDonald and Owens; but the question is, did the sheriff so intend, and did the bidder so understand it? Looking at the advertisement, what may we suppose the purchaser to have been buying ? Langham’s interest in sections ' twenty-seven and twenty-eight, undoubtedly; but what that interest was would be the next inquiry by the bidder, and the answer to that is to be found, as we think, in the reference made by the officer to the deed from Samuel to McDonald and Owens. This clause is not, as we understand it, cumulative, but restrictive, and can not be rejected as mere falsa demonstratio.

Judge Ewing concurring, judgment reversed and cause remanded. Judge Scott absent.

Reference

Status
Published