Dutra v. Pereira

COOPER, C.

This is an appeal from an order directing an alias writ of possession to issue, under section 1210 of the Code of Civil Procedure. The facts are substantially as follows:—

On the sixteenth day of April, 1898, the plaintiff recovered a judgment in ejectment against defendant for the recovery

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of the possession of land “Bounded on the north by the north boundary of the S. of the N.E. J of See. 32, T. 44 N., R. 8 W., M. D. M., on the east by the east boundary thereof, and on the south and west by the fence of defendant, containing

about

10.62 acres.” This judgment has become final. A writ of possession was issued, and plaintiff was thereunder, by the sheriff, placed in possession of the property. The defendant then removed his fence so' as to relinquish possession to 10.62 acres, being the number of acres mentioned in the judgment, but did not place his fence on the north boundary line of said land, but some five or six chains south thereof, thus again assuming possession of a portion of the land which had been adjudged to belong to plaintiff. Defendant does not claim that he placed his fence on the north boundary line of the said south half of northeast quarter of section 32, but that, under the original judgment and decree, he was only to relinquish- possession of 10.62 acres. We do not so construe the judgment. It was found and adjudged that plaintiff was the owner and entitled to the possession of the south half of the northeast quarter of section 32. The land in possession of defendant was described, and the words “about 10.62 acres” may be rejected as surplusage. The findings and decree plainly show that it was the intention to give plaintiff a judgment for all the land up to thé north boundary of said south half of the northeast quarter of section 32. “Where there are certain definite and ascertained particulars in the description, the addition of others which are indefinite, unknown, or false does not frustrate the conveyance, but it is to be construed by the first-mentioned particulars. When permanent and visible or ascertained boundaries or monuments are inconsistent with the measurement, either of lines, angles, or surfaces, the boundaries or monuments are paramount.” (Code Civ. Proc., sec. 2077.)