White v. Luning
93 U.S. 514

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U.S. Supreme Court

White v. Luning, 93 U.S. 514 (1876)

White v. Luning

93 U.S. 514

ERROR TO THE CIRCUIT COURT OF THE UNITED

STATES FOR THE DISTRICT OF CALIFORNIA

Syllabus

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.

Page 93 U. S. 515

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

Page 93 U. S. 516

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

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