Fish v. Bangs

Devens, J. To the instructions as given in this case by the presiding judge no exception was taken, and we must therefore consider that so far as they went they were intelligible, correct, and adapted to the case which the jury were investigating. It is contended, however, that the judge erred in failing to instruct at all upon certain points requested by the tenant. It is the duty of the tenant to show us by his bill of exceptions, which should contain a sufficiently full statement of the facts for this purpose, that such rulings as he asked for were not only correct in point of law but were important to a proper decision of the case. The necessary tendency of instructions, even if correct, which are [126] irrelevant to the issue, is to confuse a jury and draw their minds from the questions immediately before them to other and unimportant considerations. It is not the duty of a presiding judge to rule on those matters foreign to the issue which often become the subject of debate between counsel at the bar, or to give instructions upon abstract questions. Fuller v. Ruby, 10 Gray, 285. Hewes v. Hanscom, 10 Gray, 336. Hackett v. King, 8 Allen, 144. Eastman v. Crosby, 8 Allen, 206. Burke v. Savage, 13 Allen, 408. The action was a writ of entry, brought to recover a strip of land of about sixteen feet in width and one hundred feet in length, situate in the town of Athol. The demandant, Sally Fish, who claimed title thereto by virtue of an assignment of dower in the estate of her deceased husband, had, as guardian to her minor children, subsequently to such assignment, on April 1, 1848, made a deed of certain premises to one Phillips. This estate became vested by sundry mesne conveyances in the tenant. The tenant claimed that the demanded strip was included in the description of the premises in the deed to Phillips. At the trial it was conceded that the tenant had a valid title to and lawful possession of all which was thus conveyed to Phillips. It was also admitted that the demandant, unless her estate in the demanded strip had thus been parted with, showed á title as tenant in dower and also (as the exceptions state, but in what way does not appear) as tenant in fee in the demanded premises. It was therefore a question of boundary, and as to the boundaries of the premises conveyed by the Phillips deed, the western one of which would seem to have been the only one in dispute, there was conflicting evidence. In order to maintain his case the tenant introduced a deed made by the demandant as guardian of her minor children to John C. Hill, dated May 24, 1854, conveying their rights in a certain piece of land which, as the tenant claimed, lay westerly of the disputed strip. This deed contained a recital to the effect that forty feet in width upon the east side of the premises, the right of the minor children in which was conveyed thereby, had been assigned to and was held by said Sally Fish as tenant in dower. At the closing argument the tenant’s [127] counsel contended that the recital in the deed of Fish to Hill furnished evidence in support of the tenant’s title to the demanded premises. The demandant’s counsel argued that said recital was more consistent with the claim of the demandant, and no other use was made of it. The tenant’s counsel requested the court to instruct the jury that the recital in the deed of the demandant to John C. Hill, as to the portion of that grant covered by her dower, could not be used to affect the title of the tenant. The first exception is to the refusal to give this instruction. While it is true that recitals in a subsequent deed by a party cannot be used to control his former conveyance, it does not seem that this was allowed to be done in this case, or that there was anything which called upon the judge to give the instruction requested. The tenant had himself introduced this deed in evidence, and had relied upon the recitals of it in argument to support his theory of the case, and the demandant’s counsel had argued that such recitals were more consistent with the claim of the demandant, and this was all the use he had made of it. The recital had never been put in evidence in support of the demand-ant’s claim, and in this position of the case it does not seem to us that the tenant could fairly ask of the court a ruling that the recital in the deed, introduced by him and argued upon by him, was not evidence. Nor do we see that the question as to what was the character of the right of way described in demandant’s deed to Phillips, the failure to instruct upon which forms the subject of the tenant’s second exception, arose in this case, or had any bearing upon its decision. That deed contained certain provisions as to a right of way which both parties agreed was over the premises conveyed by the deed, and not on land outside of or beyond it. Twichell, one of the intermediate grantees through whom the tenant claimed, had assumed to grant, as it would seem from the bill of exceptions (although this is not clearly stated), a right of way over the demanded strip. It was contended by the tenant in Ms argument that he could not have done this if demandant had owned the disputed land, as it would have been a violation of her rights; on the other hand, the demandant’s counsel replied in [128] substance that even if Twichell owned the disputed land, as the demandant had the right of way over it described in the deed, it would still be a violation of her rights. The tenant’s counsel then requested from the court a ruling as to the construction of this deed in reference to the right of way described in it, which the court declined to give, as we think, properly. The trial was not about this right of way in any manner, and the right of way described in that deed or reserved to the grantor by it, was not before the court for discussion. We do not think it could properly be brought there so as to require from the presiding judge a ruling upon its nature and extent, by a debate at the bar upon the question whether (assuming that Twichell, the intermediate grantee, had owned the disputed strip) it would or would not be a violation of the demandant’s right of way while so owning it to convey to another also a right of way. Its inevitable tendency was to draw the attention of the jury from the true question, which was whether or not the disputed strip was within the boundaries of the description in the deed of the demandant, to one entirely immaterial. The fourth exception cannot be sustained. Whether the reservation, which is found in the assignment of dower under which demandant claimed, of a right to have the corn barn stand upon land not included in the dower limits, did or did not authorize the demandant to maintain the corn barn where it stood at the time of the assignment of dower, after her deed to Phillips, did not, so far as we can perceive from the bill of exceptions, affect in the slightest degree the matter in issue. Exceptions overruled.