Hayes v. Wetherbee

Sharpstein, J.: Plaintiff brought an action of ejectment in one of the late District Courts to recover an undivided interest in certain lots situate in the city and county of San Francisco. On the trial of the case, a deed from James A. McDougall to Charles Precht was introduced in evidence, which deed conveyed an undivided interest of one tenth in the land, and plaintiff also introduced a deed from Charles Precht to one Gustavus Seibeck, containing the following description of the property conveyed: “All of the grantor’s right, title and interest in the following described property, viz.: One half interest in that right, title and interest of the party of the first part in and to an undivided one tenth part of that certain tract of parcel of ground,” etc. Plaintiff further introduced in evi[398]dence a deed from Gustavus Seibeck to one G. W. Ten Broeck, which contained the following description of the property conveyed all his right, title, interest, etc., in and to the following premises, to wit: One half interest- in that right, title and interest of the party of the first part, in and to an undivided one tenth part of that certain tract or parcel of ground, etc. The judgment of the Court below was in favor of the plaintiff, for an undivided one twentieth of the land in controversy, and it is claimed, on behalf of the appellant, that the foregoing description vested in Ten Broeck an undivided interest to the extent of one fortieth only.

The deed from McDougall to Precht passed the title to one tenth of the property, and the deed from Precht to Seibeck conveyed an undivided half of that tenth interest, thus vesting in him an interest of one twentieth. And the deed from Seibeck to Ten Broeck was for a one half interest in the right, title and interest of the party of the first part “in and to an undivided one tenth part of that certain tract or parcel of land.”

In the case of Jackson v. Stevens, 16 Johns. 109, a deed somewhat similar in its language was construed by the Supreme Court of Hew York. The syllabus of the case is that “where a person seised of three undivided fourth parts of a farm, conveys an equal moiety of the farm, describing it by metes and bounds, together with all the estate, right, title, etc., which he, the grantor, hath to the above described premises; these general words are not to be construed as extending the grant beyond the moiety of the premises;” and the learned Judge (Spencer), in delivering the opinion of the Court, says: “Upon a fair construction of this deed, it conveys only a moiety of the farm. The deed at first grants one equal undivided- half part of the farm, and also all the estate, right, title, etc., 'which he, the said Ebenezer Stevens, hath to the above-described premises, either in law or equity, from the last will and testament of Samuel Stevens, of, etc., deceased.’ How, the described premises were one half of the farm. It is true, the boundaries of the whole farm are mentioned; but the entire farm is not the premises described in the granting part. The one equal undivided half of the farm is there described. It is a principle in the construction of releases, and