Pride v. Lunt , 19 Me. 115 ( 1841 )

The opinion of the Court was delivered by

Sheplky J.

The levy of an execution upon the lands of the debtor operating in this State as a statute conveyance, the like rules of construction are to be applied to it as to other conveyances. Waterhouse v. Gibson, 4 Greenl. 230. The first of these requires, that the intentions of the parties should, if possible be carried into effect. It is admitted in the argument to have been the intention, that the land set off to Boyd should adjoin that set off to Cobb ; but it is contended, that this should not prevent the introduction of proof by parol evidence, that such intention was not carried into affect, and that the stake referred to in the levy as standing at the corner of land set oil’ to Cobb did not in fact stand there. The general rule, that the monuments referred to in a deed may be established by parol evidence, is not questioned. This case affords an example of its application. Parol evidence must be received to prove the location of the road and of the lands set oil’ to Cobb. Such testimony does not contradict or vary the language used in the conveyance; it only applies it. There may be two or more streams, trees, stakes, or other monuments, each conforming to the description in the deed. A latent ambiguity is' there disclosed, and parol evidence may be received to explain it. If in attempting in this pase to designate upon the earth the bounds named in the conveyance, it had been ascertained, that no land had been set off to Cobb, so much of the description though apparently clear, would have been found to be false ; and it must have been rejected as in the case of Wing v. Burgis, 13 Maine R. 111. And parol proof might then have been admitted to prove the position of the stake. It would not have contradicted any thing, which could be regarded as a part of the deed. When a conveyance declares a fact, as that the land conveyed adjoins a river, or a street; parol evidence cannot be admitted to prove, that it does not, unless a latent ambiguity be found, or the allegation be found to be false and therefore rejected. When the monuments named in the conveyance, as in this case the road and the land set off to Cobb, are found to exist as decribed, to allow the land conveyed to be separated from either of them by parol evidence would be to give a preference to that, which is uncertain, dependent on memory, and subject to change, over that which is clearly declared in writing and is of certain designation. “ The westerly corner of land set off to William Cobb,” was a monument named in the conveyance as the place where the stake.stood, and it appears to have been named for the purpose of defining with certainty its position. Parol evidence might as properly be admitted to prove, that the tract of land set off to Boyd was not bounded in running the southwesterly line on the road as to separate the stake from the corner of. the land set off to Cobb. In both cases the language used in the conveyance would be contradicted, and the conveyance itself be so far .defeated. " Should there be two monuments equally certain and permanent and alleged to be found at the same point, and it should appear in proof, that both existed, but not at the same point, a false description would be disclosed and it would become necessary to determine from other parts of the convey?mce, which allegation was false and to be rejected. But whore two monuments, one of certain, and one of uncertain location are stated to adjoin each other, the one of certain location must be regarded for the purpose of making the position of the other certain.

The conveyance in this case having declared, that the land get off to Boyd does adjoin that set off to Cobb, the parol «evidence cannot be received to prove, that it does not.

Judgment on the verdict.