The opinion of the court was delivered by
This was an action brought for an alleged breach of a covenant that the grantor, in a deed of certain lands, had good right, full power, and lawful authority to convey the same.
The description of the premises in the deed is as follows, viz.: “ All that certain tract or parcel of land in the city of Newark, * * * beginning in the easterly line of Grove street, at a point one hundred and seventy-two feet, more or less, northerly from Market street, said place being in the centre of the party wall dividing the brick house on the lot herein described, from the house on the lot next adjoining on the south • thence northerly, along Grove streét, nineteen feet, or a fraction more or less, to brick house belonging to "William
The breach relied on was that the grantor did not own to a greater depth than about sixty-five feet.
At the time of the conveyance, there was a fence running nearly parallel with Grove street, distant about sixty-five feet easterly therefrom; and upon the east side of this fence was a school-house lot, belonging to the city of Newark; there were also fences on' the side lines of the house curtilage, extending easterly to this rear fence.
These facts being shown on the part of the plaintiff, at the trial, the defendant insisted that the true interpretation of the description, applied to the actual situation of the land, limited the property intended to be conveyed, to the lot embraced within the fences, as to which the defendant’s title had, confessedly, been good; and upon this ground, he moved that the plaintiff be non-suited. The Circuit Court held that the plaintiff’s deed called for a depth of more than seventy-nine feet, and denied the motion; and the defendant offering no evidence, a verdict for the plaintiff was directed for the value of the strip lying east of the fence, to a depth of eighty feet from Grove street.
Upon this ruling, error is assigned.
It is a well-settled principle of construction, that where there is a conflict in the description of lands, between fixed monuments and courses or distances, reference will be had to the monuments, to determine the intention of the parties, because they are more certain. Howe v. Bass. 2 Mass. 380; Andrews v. Rue, 5 Vroom 402.
This deed expressly declares that the property therein described consists of one of a row of brick houses and the lot upon which that house stands. If the location of that
In this case, the evidence showed that the rear of the curtilage of not only the plaintiff’s house, but also all the other houses of the row, was marked by the fence bounding the school-house lot, upon the west, and no one undertaking to locate this house and lot would (the depth being not otherwise defined) hesitate in fixing upon this fence as the rear line. The plaintiff himself testified that, when he was examining the property before purchase, he saw the fence, and did not think the land extended beyond the fence.