The deed conveys a tract of land known as the "Mowe lot," bounded easterly "by land of George Wilson." The "Shaw lot" lies between the Mowe lot and the Wilson land, so that the inquiry is, whether the deed includes the Shaw lot. The other lines are the same, whether the easterly line is the Shaw lot or the Wilson land.
In giving construction to the deed, the evidence competent to be considered is the language of the deed and the surrounding circumstances at the time of its execution, including the situation of the parties and the object they had in view. And we think, upon all the evidence, the legal construction of the mortgage is, that it includes the Shaw lot. The boundaries include it. The presumption is, that David Gilchrist knew he owned the Mowe, Shaw, and Twombly lots, and their boundaries. It is more probable that he intended to include all the land west of the Wilson land, and extended his Mowe lot so as to include the Shaw lot, than that he intended to exclude the last-named lot when his description includes it. And it is more probable that he applied the Mowe lot name — the name of the larger lot — to both lots, than that, in describing the land he intended to convey, he passed over the Shaw lot, and bounded by a wrong monument. If the Shaw lot is excluded, the inconsistency of bounding the Mowe lot on the Wilson land cannot be explained, except upon the theory that a mistake was made. On the other construction there is no such inconsistency. The balance of probabilities on the evidence is, that the boundaries control.
If evidence of value is competent, it is almost conclusive that Gilchrist intended to include the Shaw lot, because his object in giving a mortgage was to give security. With the Shaw lot, the security is ample; without it, it is not sufficient.
In taking the quitclaim deed and in giving the release, the case finds that the plaintiff's attorney was deceived, and that the deception was without fault or negligence on his part. This was such legal fraud as to set free the release and quitclaim deed.
The finding at the trial term in regard to the Twombly lot was warranted by the evidence, and no question of law is presented by the facts relating to that lot.
The plaintiff is entitled to a decree for foreclosure of the three *Page 263 lots for the amount equitably due. This involves an accounting for the rents and profits of the Mowe and Twombly lots received by the plaintiff.
Case discharged.
BLODGETT and CARPENTER, JJ., did not sit: the others concurred.