White v. Luning - 93 U.S. 514 (1876)
U.S. Supreme Court
White v. Luning, 93 U.S. 514 (1876)
White v. Luning
93 U.S. 514
1. The rule that monuments, natural or artificial, rather than courses and distances, control in the construction of a conveyance of real estate will not be enforced when the instrument would be thereby defeated and when the rejection of a call for a monument would reconcile other parts of the description and leave enough to identify the land.
2. So far as it relates to the description of the property conveyed, the rule of construction is the same whether the deed be made by a party in his own right or by an officer of the court.
This was an action of ejectment by the defendant in error to recover the possession of certain lands situate in Santa Cruz County, Cal., being a part of the rancho Sal Si Puedes, and containing 1,021 3/4 acres.
By written stipulation of the parties, the case was tried by the court, which found the following facts:
First, that the Rancho Sal Si Puedes lies partly in the County of Santa Cruz and partly in the County of Santa Clara, and was finally surveyed and patented to the claimants, of whom the said White was one, in the year 1861.
Second, on the eleventh day of April, 1866, said White was the owner of certain portions of the said Sal Si Puedes Rancho and, as such owner, mortgaged the same to the plaintiff herein.
Third, an action was afterwards commenced by the plaintiff herein in the District Court of the Third Judicial District of the State of California for the County of Santa Cruz against the said White and other defendants to foreclose said mortgage, and such proceedings were duly had therein that on the eleventh day of April, 1866, a judgment of foreclosure and sale was entered therein whereby, among other things, it was decreed that the mortgaged premises should be sold at public sale by the Sheriff of Santa Cruz County and the proceeds of such sale should be paid over to the plaintiff therein. The premises in controversy were embraced in said mortgage, and in the lands directed to be sold by said decree.
Fourth, that afterwards, the said White directed the said sheriff to sell said mortgaged premises in parcels, one of which parcels contained 1,021 3/4 acres, and said sheriff thereupon, in obedience to said judgment and said directions of said White, on the twentieth day of August, 1866, duly sold said premises in parcels, and at said sale the plaintiff became the purchaser of three of said parcels for the sum of $15,600, the other parcels being sold to other purchasers, which parcels are not separately described in the decree and order of sale, but are embraced in the description therein set forth.
Fifth, that afterwards, and in pursuance of said sale, on the twenty-seventh day of February, 1867, the time for redemption from said sale having elapsed, Albert Jones, sheriff of the County of Santa Cruz, executed, acknowledged, and delivered to the plaintiff his sheriff's deed, wherein it was recited that by a certain judgment of foreclosure and sale, entered in the
District Court of the Third Judicial District of the State of California in and for the County of Santa Cruz in the action of Nicholas Luning, plaintiff against William F. White, Frances J. White, Eugene Casserly, and Nicholas McCarty, defendants, on the eleventh day of April, 1866, the said sheriff was commanded to sell at public auction, according to law, to satisfy the said judgment, amounting to $23,968.69, and interest and costs of suit, and expenses of sale.
That in pursuance of a certified copy of the order of sale, duly delivered to the said sheriff, he duly advertised, and sold at public auction, on the twentieth day of August, 1866, at twelve o'clock noon, to the highest bidder, for cash, three several parcels of land to the plaintiff for the sum of $15,600, he being the highest and best bidder therefor, and delivered to him a certificate of sale, as required by law; that the time allowed by law for redemption expired without redemption having been made; that said sheriff, in pursuance of said judgment and of the statute in such case made and provided, for the consideration of $15,600 granted and conveyed to the plaintiff the said three parcels of land firstly, secondly, and thirdly described in said deed.
That the premises sought to be recovered in this action are described in said deed as one of said parcels, as follows:
"All that tract of land situate in the County of Santa Cruz, being part of the Rancho Sal Si Puedes, beginning at a post, marked 'S,' which stands in the old fences on the south boundary of the land of W. F. White, S. 46 1/2 § E. 6 6/100 chains, from the east line of White's valley partition; thence, by true meridian (magnetic variation, 15° 30' E.), along said fence and on said line of partition the following courses; S. 46° 30' E. 20 47/100 chains, S. 60° 30' E. 4 12/100 chains, S. 73° E. 4 24/100 chains, S. 77° E. 12 14/100 chains, S. 88 1/2° E. 18 chains, S. 69 1/4° E. 3 70/100 chains, N. 47 1/2° E. 127 chains, to the north boundary of the Rancho Sal Si Puedes on the mountains; thence along said north boundary the following courses: N. 52 1/2° W. 11 10/100 chains, S. 75 1/2° W. 15 90/100 chains, S. 79° W. 11 40/100 chains, N. 20° W. 2 chains, S. 83 1/2° W. 12 80/100 chains, N. 72° W. 13 70/100 chains, N. 22 1/4° W. 6 20/100 chains, N. 65° W. 5 16/100 chains, N. 59 1/2° W. 7 93/100 chains, N. 42 1/4° W. 14 71/100 chains, N. 1° E. 11 chains, N. 3° W. 25 90/100 chains, N. 26 3/4° W. 4 50/100 chains, S. 46 1/4° W. 77 75/100 chains, to the pasture fence;
thence along said pasture fence the following courses: S. 34° 20' E. 11 43/100 chains, S. 10° E. 3 16/100 chains, S. 27 1/2° W. 4 71/100 chains, S. 40° W. 2 36/100 chains, S. 65° 50' W. 4 90/100 chains, S. 47 1/2° W. 4 86/100 chains, S. 72 1/2° W. 10 55/100 chains, S. 89 1/2° W. 5 27/100 chains, S. 65° W. 11 74/100 chains, to a post marked S, from which a forked red oak, 12 inches in diameter, marked 'B. T.,' bears S. 65° W., distant 38 Jinks; thence S. 47° 42' E. 50 32/100 chains, to a post on the south side of a ravine, and thence S. 41° 37' E. 17 32/100 chains to the place of beginning, containing 1,021 3/4 acres."
Sixth, that the post marked "S," being the point of beginning mentioned in said deed, the fence along the line of partition, the mountains, the pasture fence, the forked red oak marked "B.T.," the post on the south side of a ravine, all of which are called for in said deed, are all well known and existing monuments and are all within the County of Santa Cruz. That the said partition fence does not run to or in the direction of either the north boundary of the Rancho Sal Si Puedes or the mountains, but runs nearly parallel thereto, and that the course N. 47 1/2° E. 127 chains is not the course of such partition fence, but is nearly at right angles thereto. That the summit of the first range of mountains is the northerly boundary line between said County of Santa Cruz and said County of Santa Clara, and said summit and said county line are about the distance of 127 chains from the point in said fence where the course N. 47 1/2° E. begins, and in the direction of said course.
That the northerly boundary of said Rancho Sal Si Puedes is not in the County of Santa Cruz, but in the County of Santa Clara, on another range of mountains, about three-quarters of a mile beyond the summit of said first range of mountains and beyond the said county line situate thereon in the same (northerly) direction.
That leaving said fence at the point where the course N. 47 1/2° E. 127 chains begins, and running thence the said course and distance, and all the remaining courses and distances as laid down in said deed, but rejecting the words of the call at the end of said course, "the north boundary of the Rancho Sal Si Puedes on," and, "along said north boundary," and changing the last course of the description from S. 41° 37' E.,
so as to make it read S. 41° 37' W. 17 23/100 chains to the place of beginning; all other calls, monuments, courses, and distances in said deed completely harmonize, and the lines enclose a tract of land containing 1,021 3/4 acres of land situate entirely within the County of Santa Cruz, being the quantity of land called for in said sheriff's deed, and the same tract of land sued for in this action; or, in other words, if, from the point of beginning, the courses and distances of said description contained in said sheriff's deed, being the field notes of the survey, are followed from the point of beginning, changing east into west in the last course, the lines would close, embracing the said lands and would correspond with all the other calls and monuments mentioned in the deed, except that there would be a departure at nearly right angles from the fence at the beginning of the call N. 47 1/2° E. 127 chains, and the lines would not extend to, or in any manner correspond with, the north boundary of the Rancho Sal Si Puedes.
Seventh, that if the course N. 47 1/2° E. should be continued some three-quarters of a mile beyond the 127 chains called for in the deed, to the north boundary of the Rancho Sal Si Puedes, and from that point the remaining courses and distances be run according to the calls in the said sheriff's deed, the line so run would not follow the north line of the rancho other than its general course, nor touch the partition fence, nor correspond with any of the other subsequent calls named in the deed, nor would the lines close, nor would they enclose the land sued for, nor the quantity called for in the deed.
Eighth, that if from the point at the end of the course N. 47 1/2° E. 127 chains the remaining courses and distances should be run as laid down in the said sheriff's deed to the point of beginning of the course "S 46 1/4° W. 77.76 chains to the pasture fence," the said line would run along the summit of the said first mountain range in the same general direction of the county line, but would not follow it, running thence the last-named course and distance, the partition fence would be reached not in the general course of the county line, but in a course nearly at right angles to the general course of said county line. The pasture fence and all calls other than these herein in the sixth and ninth findings named as excepted and
rejected, would be reached by following the courses and distances called for in the said sheriff's deed.
Ninth, that all the calls in the said description cannot be harmonized so as to enclose the premises sought to be recovered, nor any other land; that the call for continuing the line along White's valley partition fence beyond the point where the call for course and distance is "N. 47 1/2° E.," is repugnant and inconsistent; that the call for the northern boundary of the Rancho Sal Si Puedes on the mountains is false and mistaken; that the calls to run along that northern boundary till the pasture fence is reached is alike false and mistaken; that without rejecting each of the said false, mistaken, and repugnant calls, the description will not enclose the land in controversy.
That afterwards, the defendants entered upon and ousted the plaintiff from said land, and at the commencement of this action were and are still in possession thereof, without any title thereto whatsoever.
The court further found as conclusions of law:
First, that the said false, mistaken, and repugnant calls in these findings mentioned should be rejected from the said description, and the calls for courses and distances from the starting point be adopted as descriptive of the lands conveyed by said sheriff's deed, rejecting the said false, mistaken, and repugnant calls therefrom.
Second, that by virtue of said sale and sheriff's deed the title to the land described in the plaintiff's complaint became, and still is, vested in fee simple absolute in the plaintiff herein, and that the plaintiff is entitled to recover in this action the land and premises described in the complaint by courses and distances, rejecting from the description in the said sheriff's deed the said false, mistaken, and repugnant calls, together with his costs of suit.
The court thereupon gave judgment for the plaintiff.
The defendants thereupon sued out this writ, and assign for error in this court the action of the court below in admitting the sheriff's deed to prove title to the land sued for.
The description of the premises as furnished to the sheriff and that contained in the complaint is as follows: