Willard v. Moulton , 4 Me. 14 ( 1826 )

Mellen C. J.

delivered the opinion of the Court at the ensuing term in Cumberland.

The only question in this cause is, whether the demanded premises were conveyed to the tenant by the mortgage deed of Abner Hill to him dated Nov. 27, 1821 ; for if so, the present action cannot be maintained. To answer this question correctly we must look back to prior transactions. On the 14th of May, 1811, Joseph Hill was the undisputed owner of the tract oí land described in the writ (two undivided third parts of which arc demanded in this suit) and twenty acres adjoining the same. On that day said Joseph conveyed one undivided third part of it to Jibner Hill°, and .March 26. 1813, said Joseph conveyed to said Afiner the remaining two third parts, and on the same day Abner reconveyed said twenty acres to Joseph by metes and bounds. November 21, 1821, Abner Hill conveyed in mortgage to the tenant several pieces of land, not in dispute in this action, and also “one other tract of land situate in said Sanford with the “ .appurtenances, particularly described and mentioned” in the above deed from Joseph to Abner dated May 14, 1811. The deed purports to convey to the tenant “ the tract of land described” in the deed of 1811; not the premises or estate conveyed to him in and by that deed, but the mortgagor refers to that deed for the particular description of the “ tract of land” he is mortgaging to the tenant; and in order to make himself, more clear and intelligible, and to exclude the idea of his meaning to convey only an undivided third part of the tract described in the deed referred to — he adds “ said parcels of land being all the farm on “which I now live”. It is agreed that this tract, with some other small pieces, constituted his farm. This part of the description is correct and true, on one supposition, and would be false on the other. We ought not to reject either, unless one is false and the other true and sufficient in itself; according to the principles laid down by the court in Worthington v. Hylyer 4. Mass. 205, and some other cases .cited. Placing the facts in this simple point of. view, the conclusion seems very clear that by the mortgage deed to the tenant of Nov. 21, 1821, the demanded premises, being two thirds of said tract were conveyed, as well as the one third part, which the demandant admits passed by that conveyance. The result is that this action cannot be maintained and a nonsuit must be entered.