Marr v. Hobson

The opinion of the Court was afterwards drawn up by Tenney J. — The petitioner claims to be seized of a moiety of the land described in the petition in common and undivided with persons unknown. The respondents come in and file their brief statement, alleging therein, that they are sole seized. The petitioner files a counter brief statement denying to the respondents any right t,o controvert or put in issue his seizin, because they have no estate or interest in the lands; and he relies upon c. 121, $ 11, 12 and 13, of the Revised Statutes. The respondents insist that the Revised Statutes have introduced no alteration, and that the petitioner must prevail or not, as he shall show his own title to be. Several new provisions have been introduced into the Revised Statutes on the subject of partition. After providing in section 4, that the cotenants, if known to the petitioner, shall bo named in the petition, and in section 11, that “any person interested in the premises of which partition is prayed may appear and allege jointly with the other respondents or separately any matter tending to show, that the petitioner ought not to have partition as prayed for in whole or in part, and this may be done in the form of a brief statement;” section 12 provides, that, “to such brief state» — 326 — ment the petitioner may reply in the form of a counter brief statement, that the person thus answering as a respondent has no interest in the premises ; and may also reply any other matter to show the insufficiency of the respondent’s brief statement;” and section 13, farther provides, that “ if it shall appear, that the respondent has no estate or interest in the lands, the objections to the partition shall be no farther a matter of inquiry, and the petitioner shall recover of the respondent the costs attending the trial.” The two last sections are new, and were manifestly intended to prevent the interference of strangers, who could have no interest whatever in the subject. If the petitioner chooses to take an issue on the question of the respondent’s interest, he may do so, and on its -being determined in his favor, he is placed as he would have been, if the respondent had not appeared. Before then the petitioner’s seizin can be inquired into, under the first issue as it is presented, we are to see whether the respondents have any interest in the lands. Both parties claim under Abraham L. Came. The earliest title is a warrantee deed from Robert P. Marr to him, dated July 3, 1833. Came conveyed with covenants of warranty to William Pierce and Isaac Dyer by deed of Aug. 6, 1836; but in the succeeding November, Dyer relinquished all his right to said Came. The title was then in Came and Pierce or the heirs of Pierce, and so continued till June 5, 1837, when Abraham L. Came conveyed to Mark R. Came with covenants of seizin and warranty, the whole of several parcels of real estate, and among them, “ one other tract, or mill privilege, situated at Steep Falls in said Standish, being the same property, I bought of Robert P. Marr, as appears by his deed, bearing date July 3, 1833,” and in the same deed is added, “ and it is hereby understood, that I now convey all the real estate, I own in the County of Cumberland.” It is through this deed of June 5, 1837, that the respondents claim to have an interest in the lands in controversy; and the deed therein referred to, of July 3, 1833, describes the same — 327 — land embraced in this petition. From the language used in the deed of June 5, 1837, it is quite manifest, that the grantor did not profess to give an accurate and minute description of the premises intended to be conveyed, but by the comprehensive terms used, and the references made, it probably would not be difficult to ascertain the situation of the estate. Without however recurring to other matter, than that contained in the deed itself, the land could not all be found and its limits correctly defined. The estate at Bonny Eagle Falls is not described. Then follows, with nothing to indicate the precise location, “ three other tracts of land in Standisii, with the buildings thereon.” “ Also one other tract or mill privilege, situated at Steep Falls in said Standisii, being the same property I bought of Robert P. Marr, as appears by his deed to me, bearing date July 3, 1833.” By the reference, the last named deed becomes a material part of the description of the one now in question, and is to be treated in the same manner as though its contents were copied. This deed of July 3, 1833, covers three other parcels as well as that in dispute. It is contended by the counsel for the petitioner, that it was not the intention of Abraham L. Caine to convey to Mark R. Came all the land described in the deed from Robert P. Marr to him ; that he describes it as “one other tract” — “a mill privilege,” — “ at Steep Falls.” Perhaps the first clause was not the most precise use of language, if more than one distinct parcel was intended to be embraced ; but a farm is often described as a trad of land, where it may be composed of more than one piece, separated by roads, and perhaps by the lands of strangers. The terms used do not necessarily denote a mill privilege, for the language is in the alternative “ a tract of land or a mill privilege,” which is a proper inode of expression, if there was an uncertainty in the mind of the grantor, whether it was one or the other, as much as if he intended a twofold description of the same parcel, the idea of which was existing in his inind. “ Steep Falls” may mean, without any violence to the language used, the neighborhood or village, if — 328 — there be a village, situated near Steep Falls. It would be an usual mode of expression to say, that the land was at Steep Falls, if it were in the vicinity of Steep Falls. Again it is contended that the final clause in the description was not intended to enlarge it, but has reference only to the preceding language in the deed. It is a familiar principle, that effect must be given to every word in a deed, if possible, and that the language must be construed most against the grantor. We think the last sentence has important meaning. If it had been omitted, some parcels of the land referred to could not be found with any degree of certainty ; and we think this clause was for the purpose of supplying the deficiency in the previous description of the several parcels intended to be conveyed. Without these comprehensive terms, how could “ three other tracts of land in Standish” be embraced, where there is nothing to serve as a guide to them in the deed, especially, if there be other real estate not conveyed, as is contended there is ? From the whole deed of Abraham L. Came to Mark R. Came, it was the manifest expectation of the parties, that resort to other means of determining the situation and boundaries of the land embraced would be necessary, and we entertain no doubt, that it was the intention of the parties, that all the land described in the deed referred to should be conveyed. Was the same land conveyed to Jabez Hobson by Mark R. Came’s deed of Jan. 19,1839? The terms are here, as in the other deed, “ a certain tract of land situated in Standish as will appear by deed dated July 3, 1833, and recorded in the Cumberland Registry of Deeds, Book 135, page 292and in the same deed another parcel is referred to, as being in a deed dated Nov. 7, 1836, and recorded Book 157, page 87. In these references the names of’ the parties to the deeds are not mentioned; and as the one recorded in Book 135, page 292 contains several distinct tracts, it would be impossible to determine which was intended, if all were not included ; and we cannot believe that this deed is so uncertain, that it — 329 — should be treated as void. The description in this deed is in the same terms used' in the deed from Marr to, Abraham L. Came. The deed also from Jaboz Hobson to the respondents, after describing other estate, embraces another piece of land in Standish, and being so much of that conveyed to the grant- or by Mark II. Came’s deed, dated Jan. 19, 1839, as is recorded in Book 135, page 292. The description given in the deed from Robert P. Marr to Abraham L. Came must apply to the two deeds to the respondents and to their grantor with equal force and will pass the land in controversy. The respondents having shown themselves interested in the premises, and so authorized to contest the petitioner’s right to partition, we now consider the remaining question. Has ho shown such a seizin as to entitle him to hold in severalty the interest described in his petition ? He must, prevail by the strength of his own title, and not by the weakness of that of the other party. He claims under a deed from Abraham L. Came, duly executed and recorded, dated Aug. 6, 1836, to William Pierce and Isaac Dyer, their heirs and assigns, and a deed given by the administratrix of the estate of said Pierce, purporting to be under a license from the Probate Court. Although Abraham L. Came, after he conveyed to Pierce and Dyer, executed and delivered a deed of the same land, from which last the respondents claim to derive their title, yet it was of a later date and could not repeal a former conveyance, which was still operative. Both the deeds under which the petitioner claims are attempted to be impeached in their effect, the first on the ground that it had been altered in a material particular, and the last, that it was not delivered till after a year had elapsed from the time, that license to sell was obtained. From the instruction of the Judge, and the verdict of the jury one or both these facts were found. If the deed from Abraham L. Came was essentially mutilated, it could have no effect upon the issue. But from the case, by its original terms, it had become void, which would well account for the grantor’s subsequent conveyance. The deed of the administratrix could pass no title after the — 330 — expiration of a year from the time license was obtained. The delivery was essential to make the sale perfect. St. of 1821, c. 52, § 12; Macy v. Raymond & al. 9 Pick. 285. No attempt having been made to show that the petitioner ever occupied the premises, he could have no seizin, excepting by virtue of the deed from the administratrix, which failed equally to give seizin as it did title. Lands on the death of the owner pass to the devisee or heirs, who are entitled to possession. The executor or ■ administrator has in no case, virtute officii, a right to the possession of the deceased’s lands. If they are wanted to pay debts, they can be sold under license ; the right to sell being a naked power, which cannot be defeated by alienation or disseizin. And the purchaser of lands lawfully sold by an executor or administrator may enter and maintain a real action on his own seizin by virtue of the conveyance and his entry. Willard v. Nason, Adm’x. in error, 5 Mass. R. 240. It follows from these principles that the deed from the administratrix, even if the intestate had title, could transmit nothing whatever. Judgment on the verdict.