Lovejoy v. Lovett

Morton, J. The only controversy between the parties in this case is as to the true position of the northerly line of the lot conveyed by the tenant to Wentworth, through whom the demandant claims title. It is impossible to understand and apply the description of the deed, without the aid of the plan used at' the trial, showing the surrounding land and buildings. Upon reference to this [273] plan, it appears that the northerly line claimed by the demand-ant runs from land of Mrs. M. A. Lovett, by land formerly of Samuel Wait, but which belonged to the tenant at the date of nis deed to Wentworth, through a house there standing, to land of Turner. The northerly line claimed by the tenant is about sixty-five feet from this, southerly, and runs between land of Atwood and land of Maiers. It cannot be determined from the deed itself, without the aid of extrinsic evidence, precisely where the line runs. The description begins at a fixed monument, being the southeast corner of the land of Atwood on Salem Street. This land is erroneously described in the deed as “ land of J. R. Atwood and others,” but there is no dispute that the land meant was the lot owned by Atwood solely. It then runs “ northerly by land of said Atwood and others to land of said Lovett.” This boundary, standing by itself, might perhaps, without violence of construction, be held to run by said land of Atwood and by land of M. A. Lovett to the land formerly of Samuel Wait, as contended by the demandant. But the second line runs “ thence easterly by said Lovett’s land to land of C. A. Maiers and others.” This is the line in dispute. If it is situated as contended by the demandant, it would run from land of M. A. Lovett to land of Turner, and would not strike land owned by Maiers, or in which he had any interest. It would be a forced construction to hold that the description “ running to land of C. A. Maiers and others ” meant running to land of Turner. The more reasonable inference is, that, as in the case of the Atwood lot, the parties intended to run to the Maiers lot, and by an error described it as belonging to Maiers and others. This conclusion is supported by some considerations which, though not conclusive in themselves, are entitled to some weight as confirmatory of this apparent intention of the parties. The deed describes the lot conveyed as “containing eight thousand square feet, more or less.” If the northerly line, as claimed by the tenant, runs between the land of Atwood and land of Maiers, at or near their northerly ends, the lot would contain within five hundred feet of that quantity; while, if the demandant’s claim is correct, it would contain nearly eleven thousand feet. Again, the line claimed by the demandant would [274] run directly through a dwelling-house; and it is highly improbable that, if the parties had intended such a line, they would have failed to mention that fact, as they did in the case of the easterly line, which runs through another house. The principal argument in favor of the demandant is drawn from the concluding clause of the description in the deed, “ being the saíne premises conveyed to me by Ezra Holden, by deed dated May 7,1829.” His argument is that this was intended as a general description of the lot conveyed, and, as the particular description is uncertain and indefinite as to the northerly line, the general description should prevail. This clause is entitled to some weight in determining the intention of the parties, but, in our opinion, it is not sufficient to overcome the inferences to be drawn from the other parts of the deed. Reference is made to the Holden deed, not for the purpose of fixing the metes and bounds, as if describing the lot conveyed, but to show the grantor’s chain of title. The Lovett deed describes the lot conveyed by metes and bounds, by a particular description, which shows with reasonable certainty that a smaller lot was intended to be conveyed than that described in the Holden deed. Taking the whole instrument together, we are of opinion that the intention of the parties was that the northerly line of the premises conveyed should run from the land of Atwood to the land of Maiers. This construction is not inconsistent with any of the language of the deed, and it meets and answers the description. But it is clear that it is impossible, from the deed and plan, to determine precisely the location of the line. This being uneer tain, it was competent for the tenant to show the practical construction which the parties gave to the description of the deed by their acts and their treatment of the property, for the purpose of showing what the true line established by them was. Stone v. Clark, 1 Met. 378. Exceptions overruled.