Treat v. Joslyn

C. Allen, J. In the opinion of a majority of the court, the description of the granted premises is not to be construed in the same manner as if it had been “ bounded east two hundred feet on a passageway.” The words “ east two hundred feet by other land of said grantors on a passageway ” mean other land of said grantors on which there is a passageway. The reference to the passageway, if such passageway were found there, would serve to fix the line, as a reference to an existing monument. But no passageway was found there. It existed merely in this description in the deed. The description, therefore, of the land granted, is to be taken to be of a tract of land fifty-six feet broad on the north, and fifty-six feet broad on the south, and bounded east by other land of the grantors, on which there is a passageway. There is nothing to control the measurement of fifty-six feet as the breadth of the tract of land which is granted free of incumbrances made or suffered by the grantors; and accordingly, in pursuance of the agreement of the parties, a decree is to be entered declaring that the passageway referred to in the deed is wholly east of a line drawn parallel with and fifty-six feet from the east line of Oxford Street, and restraining the defendants from claiming any passageway or right of way under said deed in any part of the lot west of said line. Wilson v. Hildreth, 118 Mass. 578. Morse v. Rogers, 118 Mass. 572, 578. Decree accordingly.