Opinion
No. 3232.
Decided May 6, 1941.
A bill to remove a cloud from the title to real estate lies by a grantee whose grantor had previously given an instrument which though duly recorded was of ambiguous nature, creating doubt whether the parties intended it to be a conveyance inter se or a power of attorney to convey.
In the interpretation of a written instrument the court's function is to construe the writing in the light of the facts admitted or found to exist.
On certain evidence indicating a practical construction of a document, the finding was justified that the parties did not intend the instrument to be an indefeasible conveyance of title but a transfer, coupled with a power of attorney which might on certain circumstances authorize a transfer to a third party.
BILL IN EQUITY, to remove a cloud upon the plaintiffs' title to certain real estate in Keene. Trial by a master who found for the plaintiffs. Thereafter, the defendants moved to set aside the master's report upon the ground that there was no evidence to sustain certain findings of fact and that the report is against the law, the evidence and the weight of the evidence. These motions were denied and the defendants excepted.
The master found that upon April 26, 1933, Bessie Weiner, mother of the defendant Belle, conveyed the premises in question to the plaintiffs by warranty deed recorded March 16, 1929, and the plaintiffs entered into possession. The document creating the supposed cloud upon the plaintiffs' title was executed March 4, 1929. It purports to "give, grant, bargain, sell, alien, enfeoff, convey and confirm" the premises in question "unto Belle, her heirs and assigns forever." Following the description of the property, the document continues as follows: "I the said Grantor, hereby transfer and set over to the said grantee all my homestead and whatever other my right in said property I may now or hereafter have, and I do hereby appoint my daughter, the said grantee, my Attorney for the purpose of conveying my said rights in said property and she is hereby irrevocably authorized to convey the same by proper deed or deeds either in her or my own name or as my Attorney, to the purchaser or purchasers absolutely and in fee simple, and such sale shall forever bar me and all persons claiming under me from all my said rights and interest, whether at law or in equity."
Following this clause is the usual language of a warranty deed, subject to a mortgage to the Keene Savings Bank for $3,200.
The master also found that "the deed Bessie to Belle of March 4, 1929, was not considered by either party thereto, as an absolute, indefeasible conveyance of Bessie's title to Belle, but rather as a transfer of the legal title coupled with a power of attorney to convey the same, in case Bessie became incapacitated, the which not happening, Bessie conveyed it herself for a good and sufficient consideration secured by a mortgage, now held by Belle as Conservator."
The defendants' exceptions to the denial of their motions as above set forth were transferred by Johnston, J.
Cain Goodnow (Mr. Goodnow orally), for the plaintiffs.
Howard B. Lane (by brief and orally), for the defendants.
In a case like the present, involving the interpretation of a written instrument, it is the function of this court to construe the writing in the light of the facts which are admitted or found to exist. Pettee v. Chapter, 86 N.H. 419. The contention of the defendant, Belle Weiner, at the argument was, not that the case was void of evidence to sustain the specific findings of the master, but that the facts found by him were insufficient to sustain his conclusion that "the deed from Bessie to Belle of March 4, 1929, was not considered by either party thereto as an absolute, indefeasible conveyance of Bessie's title to Belle." It is unnecessary to review in detail the findings of the master. It is sufficient to say that he found, upon competent evidence, certain facts regarding the conduct of the parties, contemporaneous with and subsequent to the execution of the document, indicating a practical construction of its terms, fully in accord with his final conclusion, with which we are quite content.
Exceptions overruled.
All concurred.