This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
Parcels, how to be described.
(f) Stamp Act, 1891, s. 58 (6).
(g) See s. 1 and Sch. 1.
(h) See Alpe, 17th ed. pp. 118 - 130.
(i) S. 55. (k) See s. 56.
(l) As to the description of registered land, see L. R. Act, 1925, s. 76 (replacing s. 14 (2) of L. T. Act, 1897); and see rules 272 - 285 of the L. R. Rules, 1925.
Care should be taken in using a plan to have either a substantive description of the property in the body of the deed or in a schedule, so as to let the plan be merely in aid and explanation of this description; or else to insure perfect accuracy in the plan itself (o). This, except in the case of very small properties, may generally best be done by using the ordnance map. Accuracy is particularly requisite in conveyances or leases of mines, or where land is cut up for building purposes, or is otherwise conveyed by reference to imaginary lines of demarcation. In such a case, a slight error in the drawing of the plan may be attended with serious consequences. For instance, where a piece of land was conveyed by the description of "a small piece marked in the plan as 153, b," containing 34 perches, and the plan was drawn to a scale, and 153, b, being a piece marked off on the plan from a close numbered 153, contained according to the scale only 27 perches, it was held that no more passed; though there was little doubt that the plan was incorrect, and that 153, b - which was a valuable strip of frontage - was intended by both parties to extend to a point corresponding with the extent of some adjoining back land, to which it would have extended had it in fact contained 34 perches instead of 27 perches (p).
Care requisite in the use of plans.
Effect of error.
(m) Re Sparrow and James' Contract, 1910, 2 Ch. 60. This case, as will be seen from the report, was decided in 1902.
(n) Re Sansom and Narbeth's Contract, 1910, 1 Ch. 741.
(o) See, as to the effect of a variance between a schedule to a conveyance and an indorsed map, Llewellyn v. Earl of Jersey, (1843) 11 M. & W. 183; and as to the schedule and map restricting the description in the body of the deed, Barton v. Dawes, (1850) 10 C. B. 261; Walsh v. Trevanion, (1850) 15 Q. B. 733; Re Brocket, 1908, 1 Ch. p. 196.
(p) Llewellyn v. Earl of Jersey, (1843) 11 M. & W. 183; 12 L. J. Ex. 243; Barton v. Dawes, (1850) 10 C. B. 261; 19 L. J. C. P. 302; Harris v. Pepperell, (1867) 5 Eq. 1; Davis v. Shepherd, (1866) 1 Ch. 410; 35 L. J. Ch. 581, where the supposed direction of a fault which was to be the boundary of a mine was shown upon a plan; Lyle v. Richards, (1866) L. R. 1 H. L. 222; 35 L. J. Q. B. 214, a case of disputed boundaries between grantees of conterminous mines. See also May v. Piatt, 1900, 1 Ch. 616; 69 L. J. Ch. 357.
The result was that part of the back land, which was comprised in the sale, was left without a frontage (q). The question of parcel or no parcel is a question of fact for a jury to decide; but it is the province of the judge to explain to the jury how the map, as any other portion of the deed, is to be construed (r).
Where the occupancy of the property is referred to, care should be taken to have a substantive and sufficient independent description; otherwise, the effect of the deed will depend upon evidence of the fact of occupancy; and nothing which cannot be strictly proved to have been so occupied will pass (s). Where the reference to occupancy is in the following form: "all that messuage, etc, as the same is now, or lately was, in the occupation of A. B.," it is not to be considered as intended to restrict the purchaser's enjoyment of the property, in the way in which it was enjoyed by A. B., but merely to identify the property (t). Under certain circumstances, where an instrument is ambiguous, evidence of user may be given to show the sense in which the terms of the instrument were employed (u).
Reference to occupancy.
But where the deed contains an adequate and sufficient definition, with convenient certainty, of what is intended to pass (x), an erroneous addition, whether subsequent or not to the true description (y), will not vitiate it, according to the maxim falsa demonstratio non nocet (z). For instance, under a conveyance by A. of all his meadow Blackacre, described as containing 10 acres, but which in truth contains 20 acres, the whole 20 acres will pass (a), so, under a conveyance by A. of all his farms X., Y., and Z., in the parish of M., in the occupation of B., farm X. would pass, though in fact occupied by C: but if the premises are described in general terms, and then a particular description is added, the latter, it has been usually considered, controls the former (b): e.g., if the conveyance were simply of all A.'s farms in the parish of M., in the occupation of B., no farm would pass which was not in fact so occupied (c). "It is clear, to my mind," said Joyce, J., in Re Brocket (d), "that if there be a conveyance of real estate described in general terms followed by a definite and specific enumeration of particulars, as by schedule with or without plan, which enumeration omits something which might otherwise have been covered by the general description, then, generally speaking, the designation by schedule and plan would not be ,read as an imperfect enumeration to be disregarded as falsa demonstratio, but as restrictive of the prior general description." Where the parcels were described as "all that messuage with the lands, etc, situate, etc, and now, or late, in the occupation of:r. B.," and then followed a particular, but not exhaustive, description of certain of the closes of which R. B.'s farm consisted, the Court of Exchequer held that only the closes expressly specified passed by the deed (e).
Error of description.
(q) As to the importance of accuracy in the plan, see Eastwood v. Ashton, 1915, A. C. 900, 919 - 920; Mellor v. Wahnesley, 1905, 2 Ch. 164, 175.
(r) Lyle v. Richards, sup.; inf. p. 864.