Carmichael v. Foley
Carmichael v. Foley
Opinion of the Court
delivered the opinion of the court.
On the trial of this case, the plaintiffs counsel objected to the introduction of testimony to limit the operation of a deed to a tract of land. The descriptive words in the deed are as follows: « All that tract, or parcel of land, containing 240 acres, situate, lying and being in the county of Wilkinson, on the Bayou Sarah waters, bounded on the north by lands of Reuben Dunham; east by lands of said Patriot Foley, south by lands of said John F. Carmichael, and west by the west branch of Bayou Sarah Creek.”
For the plaintiff it is contended that he is entitled to the 240 acres of land, and that that quantity is as consistent with the boundaries called for by the deed, as is less; but the defendant
Latent ambiguities relate to the subject of the deed, and can only be made appear by evidence of something extrinsic arising in the application of an instrument of clear and definite intrinsic meaning to doubtful subject matter, and although they can only be raised by extrinsic evidence, either parol or written, yet they must be clearly shown before they become the subjects of explanation. We must therefore in the first place inquire whether the evidence given raised a latent ambiguity. A comparison of the boundaries and description, called for by- the deed, with those shown by the evidence, becomes necessary.
By an examination of the survey taken, it seems difficult to decide this case without a violation of some principle, whether we regard the. deed as conclusive, or admit the evidence ip^ex-planation. In the’ descriptions given in deeds, it is a rule that what is most certain and material shall control that which is less certain and less material. 5 Cowen, 373. And fixed monuments control both course and distance. 7 Wheaton, 10; 6 Mass. Rep. 33. When land is definitely described by boundaries, and the quantity of acres is given, it will be considered merely as a part of the description, and being less certain than the boundaries, must be controlled by them. 5 Mass. Rep. 357; 2 Johns. Rep. 37. At least this appears to be the rule, where the quantity.is not the subject of a positive covenant. If therefore the boundaries in this instance had been so .accurately described as to leave no
He has the same right to contend for the whole length of this boundary that the defendant has to contend that he is limited by the southern boundary, which is much shorter than the northern, and much too short to give the quantity of acres called for. The call on the north, or Dunham’s line, is much longer than the call on the south. To run the whole length of the northern boundary as called for by the deed, would include considerably more than 240 acres, by extending the southern boundary to an equal length; but if the northern boundary is to be no longer than the line of Carmichael on the south, then only 150 acres would be included in the survey. Taking either position it would still be bounded on the east by the lands of Foley. The boundaries as called for, therefore, make but an imperfect description. By taking the quantity of acres the southern boundary or line is extended east beyond Carmichael’s line, and on the north it stops short of the termination of Dunham’s line, and thus varies from the boundaries in the deed. This shows most manifestly that there was no actual survey of the land before sale, or the parties would have been more accurate in the description. But would parol evidence remove this difficulty? It would not. By admitting it two parts of the description given in the deed would be rejected, to wit, all the northern boundary east of Jelks’s tract, and the quantity of acres, and I am not aware that parol evidence is admissible to explain an ambiguity where the subject matter does not meet the description given in the deed in the most material points. The most usual instances given in the books of latent' ambiguities which admit of explanation are, where there are two subjects or objects which answer the description; as if a person grant his manor of S. generally, and has two manors of that name, parol
There is nothing in the evidence, setting aside the supposed interest of Foley, which would- lead certainly to the conclusion that the Jelks tract was the subject matter of contract. If boundary is to control quantity, I am not entirely sure that Carmichael is not entitled to the full extent of the known boundaries called for by the deed, running as far as it is bounded on the north by Dunham’s land. If that was a known and fixed line, I see nothing, according to the authorities, which could restrict it, unless it be the quantity. Deeds are invariably to be construed most strongly against the grantor, and Í conceive that this rule of law must have its weight. I think, therefore, that the testimony does not satisfactorily raise a latent ambiguity, and of course there was none to be explained, and that it was improperly admitted.
The judgment must be reversed and a venire de novo awarded.
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