Smith v. Carmody

Field, J. The deed executed by Charles T. and Ellen Smith on August 11, 1880, must be construed to be a deed of release and quitclaim by both, and to convey all the interest of Ellen, as well as of Charles, in the parcels described, and not a conveyance by Charles alone with a release by Ellen of all right to dower and homestead in the premises conveyed by Charles. If the measurements of the parcels are to govern, this deed conveyed the strip two feet and seven inches wide owned by Ellen, and the judgment should be for the tenant. The presiding justice could not therefore rule, as matter of law, that “ the tenant had not made out a defence.” The deed purports to release and quitclaim “ a certain parcel of land, with the buildings thereon standing, situated in that part of Boston called South Boston, and numbered 87 and 89 C Street, and is bounded and described as follows,” &c. There are no boundaries in the deed on the southerly side which can be used to control the measurements. It may be suggested that the parcel of land “ numbered 87 and 89 C Street,” may have been actually so enclosed that the conveyance should be confined to the enclosure, even if the measurements extend southerly beyond the enclosure; but there are not sufficient facts set out to enable us to say that the measurements can be controlled by the description we have cited, and the plaintiff has argued the case solely on the ground that the deed conveyed only the title to the land of Charles T. Smith, with a release of dower and homestead by Ellen Smith. This we have held not to be the true construction of the deed; and, in accordance with the terms of the report, there must be Judgment for the tenant.