McShane v. Main , 62 N.H. 4 ( 1882 )

The construction of a deed is the finding of the fact of the parties' intention from competent evidence. Lane v. Thompson, 43 N.H. 320, 324; Richardson v. Palmer, 38 N.H. 212, 218; Johnson v. Simpson, 36 N.H. 91, 93; White v. Gay, 9 N.H. 126, 130; Driscoll v. Green, 59 N.H. 101; Allen v. Holton, 20 Pick. 458, 463; Worthington v. Hylyer, 4 Mass. 196; Rice v. Society, 56 N.H. 191, 197, 198, 203; Houghton v. Pattee, 58 N.H. 326; Morse v. Morse, 58 N.H. 391; Brown v. Bartlett, 58 N.H. 511. The description of the land in the deed as beginning at a given point "on Warren street," and "thence easterly by said street forty-eight feet," included the land to the centre of the street as it then existed, subject to the easement of a public highway over a part of it. There is no evidence showing a contrary intention. Reed's Petition, 13 N.H. 381, 384; Woodman v. Spencer,54 N.H. 507, 511; Sleeper v. Laconia, 60 N.H. 201; 3 Wn. Real Prop. 420. If it was the defendants' purpose to warrant the title to land which they did not own, by referring, in the description of the land conveyed, to a former southerly line of Warren street, the deed furnished little evidence of it. The parties are fairly presumed to have made their contract with reference to the property as it was then apparently located and bounded, and not as it may have existed at some former time. Richardson v. Palmer, supra; Dunklee v. Wilton Railroad, 24 N.H. 489. The object of the reference to Hill's deed, after the particular and unambiguous description of the premises, obviously was, not to give another and different description, or to extend the grant to land not owned by the grantors, but to show the grantors' chain of title, or to identify, in a general way, the land conveyed. Lovejoy v. Lovett, 124 Mass. 270, 274; Colby v. Collins,41 N.H. 301, 304; Nutting v. Herbert, 35 N.H. 120, 125.

As the deed represented the passway as extending forty feet southerly from Warren street, and as there was no visible boundary indicating the southerly limit of it, the presumption is that the grantors meant what the language of the deed expresses, and intended to convey a passway forty feet in length from the margin of the street as then located upon the ground. A passway of that description would extend beyond the grantors' land, and there is, at least, a technical breach of their covenants. But if the parties understood that the defendants were conveying the rights purchased by them of Hill, subject to the modification in the boundaries caused by the widening of the street, the plaintiff's recovery of damages would be inequitable. The defendants, therefore, may move at the trial term for leave to amend their plea by filing a bill in equity to reform the deed. Metcalf v. Gilmore, 59 N.H. 417, 432. If such an amendment be allowed, and if it appear, on a trial of the bill, that the parties understood the length of the passway had reference to the original and not the present line of the street, justice will be done by reforming the deed, and rendering judgment for the defendants.

Case discharged.

ALLEN, J., did not sit: the others concurred.