Barnard, in 1851, entered upon lot No. 180, exercised acts of ownership, and claimed title to an undivided half from that time till he conveyed to Kimball in 1859. It does not appear that Lucas, who conveyed to the defendant in 1871, had any color of title or any possession to warrant his conveyance to the defendant. The mere fact of an entry under color of a conveyance from one who does not appear to have had either a title or possession which would furnish a decent pretext for making it, cannot place the defendant in any better situation in this respect than he would have been in had he entered without a deed. Cobleigh v. Young, 15 N.H. 503. As Barnard, then, under whom the plaintiff claims, entered in 1851, and the defendant entered in 1871, Barnard's priority of entry shows the better right, and the *Page 408 plaintiff is entitled to recover in this suit. Possession is evidence of seizin against a party having no title. Wells v. Iron Co., 48 N.H. 530.
But the plaintiff does not rest his title to these premises upon mere naked possession. He has shown in evidence two chains of title, one from the sale and conveyance by Beech, as collector of taxes for the year 1818, and the other from the sale and conveyance by Rolfe, as collector of taxes for the year 1851. Both these titles were merged or united in Barnard September 1, 1851. The deed from Rolfe describes the premises as "one hundred acres of the third division of the original right of Samuel Sherburn, No. 180, be the same more or less." The deed from Beech conveys the whole lot.
The defendant claims that the deed from Barnard to Kimball, the plaintiff's grantor, conveys only the interest or title which Marshall conveyed to Barnard, and that the deed from Rolfe to Marshall is void for want of certainty in the description; and, consequently, that Marshall conveyed nothing to Barnard and Barnard nothing to Kimball. The principal question therefore is, What did Barnard by his deed convey to Kimball?
The plaintiff's position is, that as the lot contains two hundred acres, and as Rolfe's deed conveyed only one hundred acres, he conveyed a proportionate part of two hundred acres, or an undivided half, — and cites Mills v. Catlin, 22 Vt. 98, and Sheaf v. Waite, 30 Vt. 735, where the rule between a collector and his grantee is said to be held the same as between individuals. It has been held otherwise in this state. A collector's deed is void for uncertainty. "He must sell a tract in certainty, and cannot give to the bidder any election." Harvey v. Mitchell, 31 N.H. 583; Haven v. Cram, 1 N.H. 94; Bean v. Thompson, 19 N.H. 295. But we are not called upon to inquire whether the rule as thus settled in this state is erroneous, for I am of the opinion that Barnard conveyed to Kimball all his right, title, and interest in the premises, which of course included whatever interest he acquired under his deed from Trull. It would be remarkable that Barnard, claiming an undivided half of the premises under Beech, and the same undivided half under Rolfe, should undertake to convey only the title acquired from the latter, and retain the title received from the former. "In construing a deed, proof is admissible of every material fact that will help to identify the person or thing intended, or which will enable the court to put themselves as near as may be in the position of the parties, and especially of the grantor, and the court will then construe the deed so as to give effect to that intention, when they can find enough in the deed to identify the land." Swain v. Saltmarsh, 54 N.H. 9. It appears that the consideration paid by Barnard to Trull for the deed of November 25, 1844, was four hundred and eighty dollars, while the consideration paid by him to Marshall for the deed of September 1, 1851, seven years later, was twelve dollars and seventy-six cents. It would seem from this fact, as the plaintiff has argued, that Barnard in fact claimed under his prior deed from Trull, and *Page 409 merely took the deed from Marshall to prevent any claim being set up against his title; that it was not taken as a purchase of a valid title, but merely to quiet any claim under the tax sale made by Rolfe. Besides, if Barnard undertook to reserve whatever title he acquired from Trull, the question at once arises whether he is not estopped to deny that his deed conveyed the whole of his interest in the premises.
The description in the deed from Marshall to Barnard is the same as in Rolfe's deed, viz., "one hundred acres of the third division of the original right of Samuel Sherburn, No. 180, be the same more or less." As the whole lot contained two hundred acres, and he undertook to convey one hundred, he conveyed a proportionate part of two hundred acres, to wit, one undivided half, and Barnard became tenant in common with the other owner of the lot. Great Falls Co. v. Worster, 15 N.H. 454. Keeping this in view, let us proceed to examine the description in Barnard's deed to Kimball. It is as follows: (1) "All my right, title, and interest in and to the following tract or parcel of land situate in Stratford aforesaid, to wit, one hundred acres of the third division of the original right of Samuel Sherburn, No. 180, be the same more or less, (2) being the same premises conveyed to said John M. Barnard by Joshua Marshall, Sept. 1st, 1851, (3) intending hereby to convey what was conveyed to me by said deeds, no more and no less, and however otherwise described; (4) references being here made to said deed."
This description consists of four parts, the last three evidently intended to define and identify, and not to limit and restrict, the estate granted by the, first clause. The description is to be construed so as to give effect to the whole of it if possible; but if there are conflicting descriptions in the deed which cannot be reconciled, that construction must be adopted which best comports with the intention of the parties and the circumstances of the case. Bell v. Sawyer, 32 N.H. 72; White v. Gay,9 N.H. 126.
(1) All Barnard took from Trull was an undivided half, and that is exactly what Marshall's deed conveyed to him. Barnard, in his deed to Kimball, commenced the description as follow: "All my right, title, and interest in and to the following tract or parcel of land situate in Stratford aforesaid, to wit, one hundred acres of the third division of the original right of Samuel Sherburn, No. 180, be the same more or less." He thus declared his intention to be to convey all his right, title, and interest in and to said premises, which was an undivided half. There is no ambiguity in his language. It was all his interest. BELL, J., in Drew v. Drew, 28 N.H. 513, lays down the general rule, "that where the general description purports to be of all or the whole of any property described, any additional description apparently designed to apply to the same property, but which proves to be only partially true, will not be construed to restrict the grant to a portion of the property, but all will pass. It would be otherwise where the additional expressions upon their face purport to be qualifications or limitations of a preceding general description." *Page 410
(2) The second part of Barnard's description is as follows: "Being the same premises conveyed to said John M. Barnard by Joshua Marshall, Sept. 1st, 1851." This sentence is used to identify the premises. Although the premises he was thus conveying to Kimball were the same that Marshall conveyed to him, non constat that they were not also the same premises that Trull conveyed to him. Inasmuch as Trull's conveyance was seven years prior to Marshall's, and as both conveyed the same premises, there is nothing in the second clause of the description that excludes the idea that it was not his intent to convey the title he acquired from Trull.
(3) "Intending hereby to convey what was conveyed to me by said deeds, no more and no less, and however otherwise described." If the word "deeds" was used here designedly, it is clear that Barnard had in mind the deed from Trull as well as the deed from Marshall; but if it was used by mistake for the singular number, his language can only mean that he conveys just the same interest in the premises that he acquired by Marshall's deed, to wit, an undivided half.
(4) "References being here made to said deed." The plural "references" would indicate that Barnard intended to refer to both deeds as showing that he intended to convey the title and interest that he acquired from both conveyances. It is the same idea expressed in the third section of his description, but expressed differently.
For these reasons it follows that Barnard conveyed to Kimball all his interest in these premises.
In September, 1851, he entered upon the premises, exercised acts of ownership, and claimed title to an undivided half till he conveyed to Kimball in 1859. Entering under color of title, he thus became seized of an undivided half of the premises according to his title. Wells v. Iron Co.,48 N.H. 530. The conveyance by him, he being in the actual possession of the land under color of title, to Kimball, was equivalent to actual possession by Kimball. Bailey v. March, 3 N.H. 274; Breck v. Young,11 N.H. 485. His quitclaim deed transmitted his possession to Kimball — Edmunds v. Griffin, 41 N.H. 530 — and of course the deed from Kimball to the plaintiff transmitted to him the possession he received from his grantor.
The case thus far has been considered upon the defendant's theory, that Rolfe's deed being void for uncertainty in the description, he conveyed nothing to Marshall. But Marshall's deed undoubtedly furnished color of title to Barnard, under which he could enter and claim an undivided half of the whole lot. In Minot v. Brooks, 16 N.H. 374, it was held that "a conveyance by a quitclaim deed of all right and title which a party has under a collector's deed of certain lands is color of title, even if the collector's deed conveyed no interest." Lucas had no conveyance from any one under color of title or possession which would "furnish him with a decent pretext" for conveying to the defendant — Cobleigh v. Young, supra; but Marshall having purchased in good faith, from anything that appears, under the sale by Rolfe, for taxes, conveyed to Barnard, who, under color of the title thus *Page 411 acquired from Marshall, entered upon the premises and exercised acts of ownership, and claimed title to an undivided half of the premises. "The color of title suffices only to give boundary to the possession. It is the adverse possession which shoes the title." Minot v. Brooks, supra, 377, and authorities cited.
The plaintiff, having shown both the earlier and better title, must therefore prevail.