Seaman v. Hogeboom , 3 Barb. 215 ( 1848 )

By the Court,

Parker, J.

The law is well settled that where land is bounded by monuments, they control courses and distances ; for the reason that they are the most material and certain objects. (Jackson v. Wendell, 5 Wend. 146. 7 Wheat. 7. 4 Paige, 212. 2 Cowen & Hill’s Notes, p. 1378, 1380, n. 942.) The deed to the plaintiff described the land, conveyed as commencing at a known monument, and running east one hundred and fifty-seven feet to a stake and stones. But it is conceded that when this deed was executed there were no stake and stones there. The surveyor then, in tracing the line, finds no such monument. There is none there; and he is then to look at the next calls in the deed, viz. the course and distance, and be governed by them. The deed does not say easterly, but east; and there being no monument, the line must be run due east, which excludes the' premises sought to be recovered. (1 John. Rep. 156. 3 Caines, 299.)

It does not help the plaintiff’s case that there were, some years before this deed was executed, a stake and stones lying easterly of the starting point. There was not a vestige of such a monument when this deed was given. The deed does not run to where a stake and stones “ formerly stood.” The parties have chosen their own language, and describe a present monument, which it is conceded does not exist, and cannot of course be found. If it was the intention to run to where a stake and stones formerly stood, and if the language employed is the result of mistake, the only relief of the party is in equity. A court of law must decide upon the rights of the parties, according to the strict letter of the instrument, and cannot receive evidence of a mistake in the boundaries described in a deed. (Cameron v. Irwin, 5 Hill, 272.)

If there had been a stake and stones there when the deed was executed, it would make no difference that they were subsequently removed ; for the party would be at liberty to prove by parol where they stood at the time of the conveyance. If any portion of the monument was there at the date of the deed it would perhaps be sufficient; as, if a line terminated at a marked tree, the stump only of which was standing at the execution of the deed. But where there is no part nor vestige of a monument, the same having been removed some years before, to allow the line to be run to where one “ formerly stood” would not give effect to, but would vary the language of the deed.

In this case it does not appear, even by parol evidence, that the parties intended to run to where the stake and stones formerly stood; nor could such evidence have been received if offered. The court cannot certainly say, with any safety, what was the intention of the parties, without evidence in regard to it. This difficulty does not exist in equity, where a bill may be filed to reform or correct the deed according to the actual purchase, and evidence may there be received to prove what was the intention and understanding of the parties.

This is not a case of latent ambiguity, susceptible of parol explanation. The language employed is clear and explicit. A monument is given that does not exist, and by which it is of course impossible to locate the land. And effect can only be given to the deed by locating the premises by the course and distance.

A new trial should therefore be denied.