Pennington v. Bordley

Martin, J.

I concur in the opinion that the judgment of the court below in this case be reversed.

Dorsey, J.

The tract of land called Heath's Range, according to its certificate bearing date the 31st of August 1704, begins at a marked black oak standing at the end of the N E line of Painter's Rest, resurveyed for Richard Painter the 17th of December 1678, and running thence with Painter's line, W N W 435 perches, thence along and with Painter's last line, S 36° W 210 perches, to the head of the lands surveyed fr.om the river side, then N W along and with the heads of said lands.

Painter's Rest, surveyed for Richard Painter on the 17th of December 1678, after running two courses, which are immaterial to the decision oí the question before the court, begins for the third line at a marked red oak, the boundary of ■ the second line, and runs from the said red oak by a line drawn N E 535 perches, and from the end of the N E line, by a line drawn W N W 435 perches, and from the end of the WNW line, with a straight line 730 perches, to the beginning.

*473The question submitted to the courtis this — Do the ex* pressions in the certificate of Heath’s Range, which call for the W N W and the home lines of Painter’s Rest, imperatively bind Heath’s Range with Painter’s Rest on those two lines?

I deem it unnecessary to examine the authorities which have been cited by the counsel on either side, as many of them are contradictory, and few of them profess to give the reasons on which the decisions were made.

I hold it to be an unquestionable principle of law, that the exposition of deeds or grants is solely confided to the court, and that their construction must be made on the terms or expressions of the grant, and not on facts aliunde.

Every grant presents two considerations to the court, tlie thing or corpus intended to be conveyed, and the quality of the estate in the thing. The description of the subject of the grant, as well as tlie estate therein intended to be conveyed, is part of the grant. That the court alone can decide on the nature of the estate, will not be controverted; but as the court cannot decide on the quality of the estate until the certainty of the subject matter thereof is ascertained, it would seem to follow, that the description of the thing* is to be judged of by the court, especially as both of them are parts of the same contract.

It is a maxim of our law, that the subject matter of the grant must be described by intelligible and apt terms, or the deed is void: and who declares the grant void? The court; but if the court were not the sole and exclusive judges of the description they would usurp authority by exercising this jurisdiction.

When a line lias course and distance, and a call, if both cannot be gratified, one or the other must yield, or the deed will be void for repugnancy; and therefore, the courts of this state have decided, that the call shall be gratified at the expense of the course and distance. Calls are of different kinds, as of a tree, a stone, or a tract of land, and it would be difficult to assign a reason why the two first should be imperative, and the last not so. The true position of the tract of land called for, is matter of as -much certainty as a tree.

By calling for another tract of land, and running with it, the party, if we may judge from the certificate, (and we have no right to seek for his intention elsewhere,) certainly intended to bind his land with the elder survey, and if such was his intention apparent on the face of the grant, we are bound to gratify it. To submit this question of intention to the jury, to be decided on testimony dehors the grant, would be productive of great uncertainty and endless controversy.

I am therefore of opinion, that Heath’s Range must begin at the end of the north east line of Painter’s Rest, wherever the jury may find the same to be, and bind with Painter’s Rest as expressed in the certificate, unless the boundary called for as the beginning of Heath’s Range is *474proved, in that case Heath’s Range must begin at the said boundary, (it being the object called for, and the expression standing at the end of the north east line, being matter of description;) and if such boundary does not stand in the W N W line, then a course must be shaped in the nearest direction to strike the said W N W line, and then the first and second lines of Heath’s Range must bind on Painter’s Rest, as expressed in the certificate. The judgment ■of the court below ought to be reversed.

JUDGMENT REVERSED.