Dean v. Erskine

The doctrine recognized in Prescott v. Hawkins, 12 N. H. 19, appears to govern this case. It would appear, by the evidence offered, that it was the intention of the grantor, James Erskine, to convey to the tenant by the deed of May 14,1836, the tract of 15£ acres, which was bounded on the north by the grant to Hiram H. Erskine; but that, by the omission of some words descriptive of the entire tract of 30-|- acres, his deed contained a description of half of 15| acres so bounded.

This is not a case such as is adverted to in Prescott v. Hawkins, of a practical location of the grant, which, under some circumstances, has been held to limit and qualify the written description ; so that no other than the naked question is presented, whether the acts and declarations of the grantor at the time of making the deed, as well as after and before, may bo given in evidence to control the effect of the writing itself.

The deed purports to convey one moiety of a tract of land, which is described with such certainty as to admit no doubt as to the land intended; and the effect of the evidence offered would be to show that the whole, instead of the half, was intended.

*84The clear and well established rules of evidence preclude the admission of the proposed proof, and the exception must be overruled.

There can be no doubt that the court correctly charged the jury as to matters of law, that the deed of James Erskine could admit of no other construction than that which was given to it. It was clearly the province of the court to point out the construction which the law required to be given to such instruments.

The exception on this point must, therefore, be overruled, and there must be •

Judgment on the verdict.