Pierce v. Adams

Worster, J.

On exceptions. This is a real action to obtain possession of certain real estate in Smyrna in the County of Aroostook, consisting of the west half of lot numbered four, range four, and also a seven-rod strip off from the west side of the east half of said lot, excepting one acre in the southwest comer of lot 4. The cause was heard by the presiding justice without a jury, with right of exceptions reserved on questions of law.

Both parties claim title to said premises under Florence J. Adams. The plaintiffs claim under a mortgage given by said Adams to Clarence H. Pierce, in 1922. After the death of Pierce, the mortgage was foreclosed by the executors of his will, by publication, in 1934, and the premises were conveyed by them to themselves as trustees, in 1939. The defendant claims under a deed to her from said Adams, dated April 18,1935.

If the demanded premises were a part of the “homestead farm” of said Adams when the mortgage was given, and were covered thereby, then the plaintiffs are entitled to possession thereof; otherwise not. The real estate is described in the mortgage as follows:

“My homestead farm in said Smyrna, being the same conveyed to me by my husband, Charles B. Adams, late of said Smyrna by his deed dated March 14,1914, recorded in Aroostook Registry of Deeds, at Houlton, in Vol. 273, Page 432, to which deed and the deeds and references therein referred to reference is hereby made for a more particular description of the premises hereby conveyed.”

Whether the demanded premises were therein included, and covered thereby, must be determined by ascertaining the intention of the parties as expressed in said mortgage, in the light of the cir*283cumstances existing at the time it was made. Perry v. Buswell, 113 Me., 399, 94 A., 483.

At the time this mortgage was executed, and for a long time prior thereto, Florence J. Adams owned the whole of said lot 4, of which the demanded premises are a part, together with the adjacent fourteen-acre lot in the southwest corner of lot 3, excepting only a one-acre lot in the southwest corner of lot 4 with which we are not concerned. She acquired this property by separate deeds of several parcels, from different grantors. That part thereof constituting the demanded premises was formerly the farm of Isaac L. and Arabella M. Adams, and was conveyed by them to said Florence J. Adams in 1899, after her marriage to Charles B. Adams, who then, and until 1914, owned the adjoining farm. In that year, he conveyed that farm of his to his wife, by his deed described in said mortgage. Thereafterwards she carried on both farms, which she had acquired as aforesaid, as one farm, and was doing so at the time she executed this mortgage of “my homestead farm.”

Undoubtedly, a mortgage of “my homestead farm” in a certain town, in the absence of any qualifying words, is sufficiently definite to cover the whole farm without further description, where its location and the land of which it is composed can be ascertained, although such a brief description of property may not be the best and safest form of conveyancing.

Leaving for later consideration the reference to the deed and the record thereof, there are no qualifying words in the instrument before us, to indicate any intention on the part of the grantor to convey in mortgage anything less than the whole of “my homestead farm.” If the grantor had intended to mortgage only a part thereof, or so much thereof as was conveyed to her by her husband, she would naturally have so stated. Her failure to indicate her intention to convey only a part tends to show that she intended to convey the whole farm in mortgage, although she referred only to the deed she received from her husband.

That she did not always give all of the sources of her title to this combined property when called upon to state how she acquired it, is definitely shown by the record. In 1934, she made an application to the Federal-Land Bank for a loan. That application was admitted in evidence without objection, and is before us. It appears from her *284answers therein, and from the sketch of the property included, that she claimed that all of the premises acquired by her as aforesaid constituted but one parcel, and that all of said premises had been conveyed to her by said Charles B. Adams, by his deed described in the mortgage. No mention was made in the application of the deed to her of the demanded premises, although they were definitely included in the sketch or plan of the farm, and the acreage given in the application covered all of the property conveyed to her as aforesaid by both deeds.

But the defendant, nevertheless, contends that the expression “my homestead farm” in said mortgage was expressly qualified and limited by the clause “being the same conveyed to me by my husband, Charles B. Adams, ... by his deed” dated and recorded as stated in the mortgage “to which deed . . . reference is hereby made for a more particular description of the premises hereby conveyed” so that all that was actually covered by the mortgage were the premises deeded to said Florence J. Adams by said Charles B. Adams as aforesaid.

Among the cases supporting the defendant’s contention are Barnard v. Martin, 5 N. H., 536, and Woodman v. Lane, 7 N. H., 241, both of which were criticized by the court in Melvin v. Proprietors, 5 Metc., 15, 38 Am. Dec., 384.

The defendant, however, specially relies on Allen v. Allen, 14 Me., 387. In that case, the land was described in the deed as “my homestead farm, situated in said Jay, being lot No. 13, in range 4,” and the court held that the title to only lot 13 passed thereby, although the grantor occupied other land adjacent thereto.

That case is unlike the case at bar. While the grantor in the Allen case purported to convey “my homestead farm” yet by designating the lot number, such “definite boundaries” were thereby pointed out in the deed that the property intended to be conveyed could “be located with entire precision.” There the intention to limit the “homestead farm” to lot 13 was not left to a bare reference, but was disclosed on the very face of the deed itself.'

Not so in the instant case, No “definite boundaries” of “my homestead farm” are pointed out on the face of this mortgage, so that the property covered thereby could “be located with entire precision,” as was done in the deed of the Allen case.

*285Here it can only be ascertained that Charles B. Adams conveyed to Florence J. Adams less than the whole of the farm then occupied by her, by resorting to the deed or record to which reference was made.

Of course the description of real estate appearing in some existing instrument or record may be incorporated in a mortgage by reference. That is well settled. But where a mortgage or deed contains a specific and definite grant of land by such descriptive words as “my homestead farm,” or by some specific name by which it is known, so that it can be located, the title to the whole described or named parcel will pass, in the absence of anything in the deed itself indicating a different intention, although less than the whole parcel was covered by the description in the instrument or record to which only a bare reference was made. Keith v. Reynolds, 3 Me., 393; Drinkwater v. Sawyer, 7 Me., 366; Crosby v. Bradbury, 20 Me., 61; Andrews v. Pearson, 68 Me., 19; Jones v. Webster Woolen Company, 85 Me., 210, 27 A., 105; Meir-Nandorf v. Milner, 34 Idaho, 396, 201 P., 720; Lodge's Lessee v. Lee, 6 Cranch, 237, 3 Law Ed., 210; Trott v. Joselyn et ux., 222 Mich., 452, 192 N. W., 536.

A different intention is not usually to be inferred from a mere recital of the purpose of the grantor to convey the same premises which had been conveyed to her by a certain deed which did not include the whole property; for, as a general rule, a specific grant is neither enlarged nor limited by such a recital. Smith v. Sweat, 90 Me., 528, 38 A., 554. See, also, Jones v. Webster Woolen Company, supra.

And the same rule prevails even if a bare reference to such other deed was made for a particular description of the premises conveyed. Crosby v. Bradbury, supra.

In the case last cited, it was held that a deed of “a certain saw mill site in Levant village” with other property, “meaning to convey ... all the premises” in a certain other described deed, “reference thereto for a more particular description of said premises,” will pass the mill and land thereunder, notwithstanding the grantor acquired by the deed to which reference was had, but a part of the premises upon which the mill was erected.

The opinions in Allen v. Allen, supra, and Crosby v. Bradbury, supra, were both written by Chief Justice Weston, and the distinc*286tion between the two cases is recognized in Stewart v. Davis et al., 63 Me., 539, and in Perry v. Buswell, supra.

The instant case falls within the rule laid down in Crosby v. Bradbury, supra, and there is ample evidence in the record to sustain the finding of the presiding justice, that

“There can be no doubt that Florence J. Adams understood that her entire farm was included in the Pierce mortgage . . . that the title to the entire lot Four passed by the Pierce mortgage in accordance with the intention of the parties at the time it was executed.”

We find no merit in the exceptions, and the mandate is

Exceptions overruled.