ANDREU et al.
Supreme Court of Florida. Aug. 4, 1890.
(Syllabus by the Court,)
Appeal from circuit court St Johns county;
JAMES M. BAKER, Judge.
Appellee recovered judgment in an action of ejectment brought against appellants (husband and wife) for a piece of land in the city of St. Augustine, and described in the declaration as follows: A strip of land being the east end or portion of a certain lot conveyed by Lizzie Andreu and Michael Andreu, her husband, to Mildred Watkins, by deed dated April 5, 1884, recorded in Book CC, on page 435, etc., of the public records of St. Johns county, commencing at the south west corner of the said lot on the north side of Mulberry street, being 20 feet west of the place the old line of fence stood, which, up to the time of the said conveyance, marked the dividing line between the land of said Mildred Watkins and said Lizzie Andreu; thence northerly 47 feet; thence east 5 feet; thence southerly parallel to the first line 47 feet to Mulberry street; thence west along Mulberry street to the place of beginning; and containing 235 square feet. The plea was the general issue. "
To maintain her action the plaintiff introduced in evidence the following instruments:
A deed from Lucy B. Abbott, dated May 17, 1983, conveying to plaintiff all that certain lot of land in the city of St. Augustine described as follows: Beginning at the intersection of Mulberry and Water streets, from the point northerly along said Water street 158 feet; thence south 47 feet to Mulberry street; thence eastwardly along north side of Mulberry street 158 feet to beginning corner; and is bounded on north side by land of said Lucy B. Abbott; south by Mulberry street; east by Water street; and west by lot of Andreu, and is in that part of the city of St. Augustine known as the "North City," and conveyed to said Lucy B. Abbott by I. W. Starke on the 28th day of August, 1872, and recorded in Book I, p. 505; "also reference to map on file in county clerk's office of the Mary Ann Davis tract, to which reference may be had. "
A deed dated April 5, 1884, from Mrs. Andreu. and her husband, conveying to the plaintiff " a strip of land being the east end or portion of a certain lot deeded to, party of first part by Lucy B. Abbott, by deed dated June 23, A. D. 1882, recorded In Book AAA, p. 123, the west half having been sold to Dora Benet. The piece now intended to be conveyed by this deed measures as follows: Beginning at the southeast corner of said lot which is now the dividing line between this lot and the lot of Mildred Watkins; thence northerly 47 feet to the north-east corner of said lot; thence west 20 feet; thence south, and parallel with the east side, 47 feet to Mulberry street; thence eastwardly along Mulberry street 20 feet to the place of beginning; the front and rear being 20 feet each, and the east and west sides 47 feet deep." Then follows a diagram thus:
Miss Watkins, the plaintiff, testified: That the dividing line between herself and the Andreus was, at the time of their conveyance to her, marked by a fence. Andreu's lot was enclosed by a fence on the east. That this fence was understood between them as dividing their lots. That she had not received possession of the 20 feet conveyed to her by the Andreus. That they bad given her only 15 feet and one Inch. That the fence was moved after their conveyance to her. That Andreu said be had only given witness this quantity. That the fence to now on the same line where Andreu moved it, 15 feet and 1 inch from where It stood, so far as witness knows. It was moved several months after she bought. That they agreed to let the fence remain for a white, as she had a crop on the land. She could not swear that any one measured the distance between where the fence now stands and the line where It used to stand. It was 158 feet from the line of Water street to where the line of Andreu's fence stood. That Andreu was, at the time of the deed from Miss Abbott to witness, In possession of his lot, and his fence was there, the fence that was understood to make the east line of this lot.
On cross-examination she testified that she had put up a fence on the east side of her lot on the line of Water street, but had never fenced It on Mulberry street.
James L. Colee, a witness in behalf of plaintiff, testified that some six weeks ago he measured the Watkins lot, and the adjacent lots as they stand. and made a plat " showing the lots as they now stand, and as they stood several years ago." The red lines show the lots as they stood at the time Miss Watkins and Mr. Benet bought. The black lines as they now are. are shown by. the fences, The present fence stands 15 feet and 6 Inches from where the old fence stood. The present fence is now 173 feet and 6 inches from Water street. In making my survey I began at the south-east corner of Miss Watkins' lot. The plat was Introduced, but is not necessary to an understanding of the case.
On cross-examination he said that he being his survey at the south-west corner of Water and Mulberry streets, and measured along Mulberry street 158 feet, and drove a stake; did not measure from Orange street; that be accepted, as the east line of Miss Watkins' lot, her fence built on the line of Water street; that he "went" according to her deed; cannot Ray when she bought; that he did not have any data as to where the fence then stood; took Mrs. Benet's statement and that of Mrs. Andreu as to where the old fence stood.
Upon redirect examination he said that Mrs. Andreu could not show him where the old fence stood., They said their fence on Orange street was moved back five feet, and that it was done to straighten the street, and that they intended to have the same amount of land they bought from Miss Abbott. Could not say if Andreu said the fence was moved in from Orange street before or after the sale by him to Miss Watkins. .
The testimony in behalf of the defendant is as follows:
A deed from Miss Lucy B. Abbott, dated June 23,1882. recorded In Book AAA, p. 123, of St. Johns county records, and conveying to Mrs. Andreu "all that certain piece or parcel of land in the North city lying and being In the city of St. Augustine, * * * described as follows: Bounded on the north by lands of the party of the first part. on the south by Mulberry street, on the west by Orange street, and on the east by lands of the party of the first part; and measuring on the north and south sides 150 feet, and on the east and west ends 47 feet, as by reference to the map of the North city of the Mary Ann Davis tract filed in the office of the clerk of the circuit court of St. Johns county, Fla., May 14, 1877, and Is part of the same land that was conveyed to party of first part by John W. Starke, by deed dated August 28, 1872, recorded In Book T, P. 505. " The map mentioned In this deed was also introduced In evidence.
Miss Lucy B. Abbott testified that she was grantor In the deeds to Miss Watkins and Mrs. Andreu; that she had owned the property since 1873; Van Ness an and witness owned the whole Mary Ann Davis tract; that upon a survey made of that part of the tract covered by the property in controversy a few years since she was present, and the old stake set on the line of Water street was found; that Miss Watkins' fence on the east end of her lot is on the line of Water street as platted, and as found by said survey; that the distance by the original survey of the tract from Water street to Orange street is 300 feet; that at the time Andreu built his fence witness could not get a surveyor to locate the lines of his lot, and he built his fence five feet into Orange street.
William Mickler deposed that he knew the location of the streets in North city, and the location of the land in litigation; that he had lately made a survey and measurements of the blocks lying between Water and Orange streets, and found the distance between these streets, measured along Mulberry street, to be 302 feet; that Orange and Water streets are each 30 feet wide at Mulberry street, and Mrs. Watkins' fence on Water street is on a line with the other fences on that street; that he did not measure the lots, but only the blocks; that the fence of the Benet lot on Orange street is on a line with the other fences on that side of the street. If the fence on west end of Benet's lot was moved five feet to the west, it would reduce the width of Orange street to 25 feet.
The other facts are stated in the opinion.
Rude & Dewburst, for appellants.
Fleming & Daniel, for appellee.
RANEY, C. J., (after stating the facts as above.) -It is certain that the land Intended to be conveyed by Miss Abbott to Mrs. Andreu by the deed of June 23, 1882, was bounded on the west by Orange street; or, in other words, that the eastern line of Orange street, as that street was actually located by the survey which the map of the North city of St. Augustine, filed in the office of the clerk of the circuit court of St. Johns county on the 14th day of May, 1877, was intended to represent, was made the western boundary, and the land conveyed was that extending east from Orange street 150 feet, and north from Mulberry berry street 47 feet, the land north and east being at the time of the conveyance the property of the grantor. The meaning and effect of this deed was that wherever the eastern line of Orange street, as it was laid out, was, there also was the western boundary of the land conveyed; and wherever the northern line of Mulberry street was, there was the southern boundary of the grant; and that the eastern boundary line was 150 feet east of the former street, and the northern line 47 feet north of the latter street. These are the boundaries which, as a matter of law, are given by the deed. Abbott v. Abbott, 51 Me. 575, 581. To apply this description, or identify the line described, or, in other words, locate the boundaries, it is necessary to find the described lines of the two streets, as they were actually laid out, and measure the distances given in the deed. Where the boundaries of land described In any deed really are, is always a question of fact; and parol testimony is admissible to show where they are, or apply the description to its subject-matter. Abbott v. Abbott, supra; Reamer v. Nesmith 34 Cal. 624; Turnbull v. Schroeder 29 Minn. 49, 11 N. W. Rep. 147.
The deed from Miss Abbott to Miss Watkins, the plaintiff, was executed about 11 months after the above conveyance, and makes the intersection of Mulberry and Water streets on the north side of the former street the south-east and initial point of the description of the ground, and the former street the southern boundary the latter street for the distance of 47 feet the eastern boundary, and a line parallel with and 47 feet north of Mulberry street the northern boundary, and one parallel with Water street the western boundary. It is true that it gives the distance along Mulberry street, and the length of northern parallel line, as 158 feet; but it also says that at the land granted is bounded on the west by the "lot of Andreu," (Flagg v. Thurston, 13 Pick. 145,) and makes reference to the same map to which the deed to Andreu refers.
The proof is that only one map answering the designation of the two deeds is on file in the clerk's office in St. John's county; and it should be remarked of the map that the block of land out of which the above conveyances were made is not subdivided into lots, but is, according to the map, one solid piece, measuring 300 feet east and west, by 340 feet north and south, and bounded east, south, and west by the streets mentioned above, and north by Locust street.
These are the conveyances from the common grantor, existing at the time of execution of the deed of April 5, 1884, from Mrs. Andreu and her husband to Miss Watkins, upon which deed the latter relies for a recovery of the land sued for. The question, of which a correct answer, when made, will afford a solution of this controvesy is, what land does this deed convey? By its terms it conveys "a stripe of land being the east end or portion of a certain lot deeded to party of the first part by Lucy B. Abbott, by deed dated June 23, A. D. 1882, " (stating, as supra the book and page in and upon which it is recorded, and showing it to be the deed Mrs. Andreu,) " the west half having been sold to Dora Benet. The piece now intended to be conveyed by this deed measures as follows: Beginning at the south east corner of said lot, which is now the dividing line between this lot and the lot of Mildred Watkins; thence northerly 47 feet to the north-east corner of said lot; thence west 20 feet; thence south and parallel with the east side 47 feet to Mulberry street; thence eastwardly along Mulberry street 20 feet to the place of beginning. "
There is no ambiguity in this description. Its purpose is to convey the east end of the lot conveyed by Miss Abbott to Mrs. Andreu, and it makes the south-east and north-east corners of the land so conveyed the north and south-east corners of the piece intended to be conveyed by this deed to Miss Watkins. The eastern boundary of the lot conveyed to Mrs. Andreu is made the eastern boundary of the piece intended to be conveyed by her and her husband to Miss Watkins, and no other piece of land than one whose eastern boundary is located 150 feet east of the eastern line of Orange street will answer the calls of this deed. No other eastern boundary will effectuate a conveyance of the eastern end of the lot. This deed, In giving the measurement as " beginning at the south east corner" of the lot conveyed to Mrs. Andreu, and stating that such corner "is now the dividing line between" such lot and the lot of Miss Watkins, and following with the words" thence northerly 41 feet to the north-east corner. of said lot,' means that the south-east corner on Mulberry berry street, 150 feet east of Orange. street was the commencement of the dividing line between the Andreu and the Watkins lot, and that the line run northerly to the 'north-east corner was the dividing line and that this line should be the eastern boundary of the piece of land conveyed The intention of the parties, as shown by this deed, was that it should convey the east-end piece of the lot, the same to measure 47 feet north and south, by 20 feet east and west, and be bounded on the south by Mulberry street, and having its south-east corner 150 feet east of Orange street; and to locate the boundaries of the land it is necessary to find the eastern boundary of Orange street as it had been located by the survey represented by said map, and from these locate the initial point of description 150 feet east, on the north side of Mulberry street, and trace the boundaries according to the directions and distances given in the deed.
There can be no doubt from the testimony in this case that the eastern, boundary of Orange street was, at the time Miss Abbott conveyed to Andreu, and when Andreu built the fences, at least five feet east of where lie put the western fence; and the only conclusion that can be drawn, particularly in view of Miss Abbott's testimony is that he located it where be did through a mistake as to where the eastern line of the street was, and this mistake naturally resulted in and accounts for his putting the eastern fence five feet west of where, by the calls of his deed, it should have been. Admitting as a matter of fact that both of the Andreus and Miss Watkins, when the deed from the former to the latter was made, understood the eastern fence to be on the eastern line of the lot conveyed to Mrs. Andreu to Miss Abbott, this misunderstanding cannot change the meaning and effect of the deed to Miss Watkins, which deed shows that it was the intent to convey the eastern 20 feet off the land actually conveyed to Mrs. Andreu by the deed of June 23, 1882. Whether or not the western fence bad been moved In before the conveyance to Miss Watkins is not so certain. According to this deed, Mrs. Andreu owned at least five feet east of her fence, and the record of her deed was constructive notice to Miss Watkins, even if Miss Watkins' deed from the common grantor did not put her on notice by its reference to Mrs. Andreu's lot, and Mrs. Andreu could have recovered against Miss Watkins, even assuming the latter's possession to have been adverse, as the period of the statutory bar had not run.
There can be no doubt but that Miss Watkins' fence to on the line of Water street as it was laid out by the original survey. Miss Abbott testifies to the finding of the old stake at the south-east corner and the evidence is otherwise entirely satisfactory on the point. It to true that Mickler's measurement of the distance from Water street to orange street, as the fences now stand, was 302 feet, and Colee's survey makes it 303 feet, whereas the above plan of the original survey states it to be only 300 feet. These discrepancies can be of no benefit to the plaintiff, nor any harm to the defendant, in their controversy as it appears now, for it is not pretended that Mrs. Andreu, claim's further east than 130 feet from the fence, or east line of Orange street; or, in other words, that she denies Miss Watkins' right to the east 20 feet of the 150 feet of land conveyed to her by the original deed from Miss Abbott. Assuming that the east line of Orange and the west line of Water street were, as actually laid out on the ground by the surveyor, more than 300 feet apart, the mistake as to their distance from each other would not affect their actual location as boundaries. Turnbull v. Schroeder, 29 Minn. 49, 11 N. W. Rep. 147. The description of the street in the deed from Miss Abbott to Mrs. Andreu would nevertheless mean its east line as it was actually run out. Whether or not, in the absence of any other proof than that as to finding the old stake on Water street, the eastern line of Orange street would not be assumed to be 300 feet west of that stake, is immaterial to this case.
The contention of Miss Watkins that the fence, which was 5 feet west of the true line, or only 145 feet east of Orange street, is the eastern boundary of the land conveyed, is not supported by the deed. It is not mentioned In the deed as the eastern boundary. If it had been made the eastern boundary by proper words, then of course the 5 feet east of it would not have passed, by the deed; but as it was not, the fact that either or both of the parties to the deed may have understood it to be will not include it in the grant. A deed which fails to describe any part of the land intended to be conveyed does not convey the part omitted from the description.
The parol evidence as to where the fence stood was inadmissible to prove that any other than the east true line of the lot conveyed to Mrs. Andreu was the east line to the piece conveyed by her and her husband to Miss Watkins; and no other land passed by the latter deed than a piece having the same eastern boundary, and extending west 20 feet, and otherwise answering the calls of the deed, and hence the lie land sued for to not included to that deed, and cannot be recovered under it. Cornell v. Jackson, 9 Metc. 150: Northrop v. Sumney, 27 Barb. 196; Tymason v. Bates, 14 Wend. 671; Crosby v. Parker, 4 Mass. 110; Armstrong v. Du Bois, 90 N. Y. 95; Cornell v. Todd, 2 Denio, 130; Clark v. Baird, 9 N. Y. 183, 199 et seq.; Drew v. Swift, 46 N. Y. 204; Linscott v. Fernald, 5 Greenl. 496; Bell v. Morse, 6 N. H. 205; Van Wyck v. Wright, 18 Wend. 157; Clark v. Wethey, 19 Wend. 320; Sedg. & W. Tr. Title Land, I 798a.
There is in the authorities presented In behalf of the appellee nothing in conflict with the views given, or authorities we have cited. The cases relied upon to sustain the introduction of parol evidence to show that the fence was the dividing line referred to by the deed are such as present a latent ambiguity in the description, as in Abbott v. Abbott, supra, and Hedge v. Sims, 29 Ind. 574, or where stakes or other monuments, were held to control distances, as In Turnbull V. Schroeder, supra; or where, as in Reamer v. Nesmith, supra, Waterman v. Johnson, 13 Pick. 261. and Claremont v. Carlton, 2 N. H. 369, parol testimony was admitted to explain particular expressions which did not of themselves convey a definite meaning.
Where one deed refers to another, or to a map or plan of a survey, for a description, the deed, map, or plan referred to becomes as much a part of the Instrument making the reference as if actually copied into it. Chaffin v. Chaffin, 4 Gray, 280; Allen v. Bates. 6 Pick, 460; Foss v. Crisp, 20 Pick. 121; Vance v. Fore, 24 Cal. 436; 8 Washb. Real Prop. (4th Ed.) 427, 428, 430; Gould, Waters. 394.
As the plaintiff has not been In possession of the land sued for, for the period and under the circumstances necessary to create in her a statutory, title by adverse possession, nor in fact in possession of it at any time in so far so this record discloses, and as such land is not covered by her deed from Mrs. Andreu, and parol testimony is not admissible for the purpose for which it Is attempted to be used, a new trial should be granted.
It is unnecessary to discuss the several assignments of error further than they are involved in what has been said above. The judgment is reversed, and the case remanded for a new trial.
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