This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
It is impossible to give any general rules by which to determine whether, in the case of any particular conveyance, the description is sufficiently definite to render the instrument operative. The court will, if possible, with the aid of evidence introduced for the purpose, find a particular piece of land which the description serves to differentiate from other land. A case of insufficiency of description would ordinarily arise whenever the conveyance is in terms merely of a tract, or of a tract of a certain size lying in a certain region or neighborhood, without anything to indicate its exact location.15 And a case of insufficiency of description quite frequently arises by reason of a conveyance in terms of a.
13. In Massachusetts and Pennsylvania the same rule has been held to apply in the case of a private way. Fisher v. Smith, 9 Gray (Mass.) 441; Gould v. Eastern R. R., 142 Mass. 85, 7 N. E. 543; Saccone v. West End Trust Co., 224 Pa. 554, 73 At. 971. See also Witter v. Harvey, 1 Mccord, (S. C.) 67, 10 Am. Dec. 650. But a contrary intention may of course appear from the terms of the conveyance. Codman v. Evans, 1 Allen (Mass.) 443; Crocker v. Cotting, 166 Mass. 183, 33 L. R. A. 245, 44 N. E. 214. And see Cushing r. Hathaway, 10 R. I. 514.
In Connecticut and Maine the same rule does not apply to private ways. Seery v. Waterbury, 82 Conn. 567, 74 At. 908; House Proprietary v. Brown, 33 Me. 309; Ames v. Hilton, 70 Me. 36.
As to the rule in New York, see Mott v. Mott, 68 N. Y. 246.
14. Gray v. Kelley, 194 Mass. 533, 80 N. E. 651.
15. Lewis v. Owen, 64 Ind. 446; Brock v. Mcllhenny's Son, 136 La. 903, 67 So. 951; Bell v. Dawson, 32 Mo. 79; Dickens v. Barnes, 79 N. Car. 490; George v. Bates, 90 Va. 839, 20 S, E. 828; Coker v. Roberts, 71 Tex. 597, 9 S. W. 665.
Part of a tract, without any indication of its position in such tract.16 And even though its general position in the larger tract may be indicated, the description my be insufficient by reason of a failure to state its extent.17 But not infrequently, if both the position of the smaller tract and its extent is stated, the description may be regarded as intended to cover a rectangular piece of land in the location named, as for instance upon a conveyance of the South ten acres, or the Southwest fifteen acres of a quarter quarter section.18 So a description of a certain number of acres to be taken off of one side of a tract of a triangular shape has been regarded as sufficient.19 Occasionally a conveyance in terms of a certain number of acres out of a larger tract, without any indication that they are to be laid off in any particular part of the tract has been upheld as a conveyance of an undivided interest in the whole tract, in the proportion which the number of acres named bears to the number comprised in the whole tract.20
16. Graysonia Nashville Lumber Co. v. Wright, 117 Ark. 151, 175 S. W. 405; Cooper v. Newton, 68 Ark. 150, 56 S. W. 867; James v. Hamil, 140 Ga. 168, 78 S. E. 721; Hanna v. Palmer, 194 111. 41, 56 L. R. A. 93, 61 N. E. 1051; Craven v. Butterfield, 80 Ind. 503; Brown v. Guice, 46 Miss. 299; Smith v. Proctor, 139 N. Car. 314, 2 L. R. A. N. S. 172, 51 S. E. 889; Herman v. Likens, 90 Tex., 448, 39 S. W. 282.
17. Carter v. Barnes, 26 111. 454; Morse v. Stockman, 73 Wis. 89, 40 N. W. 679.
18. Carling v. Wilson, 177 Ala. 85, 58 So. 417; Daniel v. Williams, 177 Ala. 140, 58 So. 419; Payton v. Mcphaul, 128 Ga. 510, 11 A. & E. Ann. Cas. 163, 58
S. E. 50; Evans v. Gerry, 174 111. 595, 51 N. E. 615; Early & Co. v. Long, 89 Miss. 285, 42 So. 348; Smith v. Nelson, 110 Mo. 552, 19 S. W. 734; Walsh v. Ringer, 2 Ohio 327, 15 Am. Dec. 327; Jackson v. Vickory, 1 Wend. (N. Y.) 406, 19 Am. Dec. 552; Lewellyn v. Gardner 13 Rich, (S. C.) 242; Mendota Club v. Anderson, 101 Wis. 479, 78 N. W. 185. So in the case of an exception of a named quantity. Watson v. Crutcher, 56 Ark. 44, 19 S. W. 98; Sweat v. Mullis 145 Ga. 450. 89 S. E. 422.
19. Ne-ha-sa-ne Park Ass'n v. Lloyd 25 N. Y. Misc. 207, 55 N. Y. Supp. 108; Wells v. Hed-denberg, 11 Tex. Civ. App. 3. 30 S. W. 702.
20. Cullen v. Sprigg, 83 Cal.
The insufficiency of the description may arise from a failure to name any point with reference to which the courses and distances of the boundaries are to be referred for the purpose of location on the land.21 And an attempted description by reference to the government survey may be insufficient by reason of a failure to name some essential element such as range or township.22
It has been decided that a description of the property as a house and lot on a particular street is sufficient, it being shown that the grantor owned but one house and lot on that street.23 And the same view was taken in the case of the convevance of a lot of a named measurement on a certain street, the grantor owning a lot of that measurement on the street and no other.24 And in a number of other cases the court has referred to the fact of ownership by the grantor of particular land as tending to show that the conveyance, otherwise lacking in definiteness of description, was intended to apply to that land.25 But thus to consider the question of the grantor's ownership of property in order to identify a description which makes no
56, 23 Pac. 222; Gibbs v. Swift, 12 Cush. (Mass.) 393; Pipkin v. Ullen, 29 Mo. 229; Moorehead v. Hall, 126 N. Car. 213, 35 S. E. 428; Grider v. Wood, 178 Fed. 908, 102 C. C. A. 109.
21. Le Prance v. Richmond, Fed. Cas. No. 8209, 5 Sawy. 601; Pry v. Pry, 109 111. 466; Kennedy v. Maness, 138 N. Car. 35, 50 S. E. 450; Barker v. Southern Rwy. Co., 125 N. Car. 596, 74 Am. St. Rep. 658, 34 S. E. 701.
22. Puller v. Fellows, 30 Ark. 657; Hartigan v. Hoffman, 16 Wash. 34, 47 Pac. 217.
23. Hurley v. Brown, 98 Mass. 545, 96 Am. Dec. 671 (contract of sale); Mead v. Parker, 115 Mass. 413, 20 Am. Rep. 110.
24. Burton v. Mullenary, 147 Cal. 259, 81 Pac. 844. . And see Walker v. David, 68 Ark. 544, 60 S. W. 418.