Barrett v. Murphy

Deveíts, J. It was for the demandants to establish their title to the locus in .dispute. Prior to the deed of Robinson to Harrington of the lot which the demandants now hold, Robinson had made a bond for a deed of the lot north of it to one Bailey. In fact, no deed was ever made by Robinson to Bailey, but in the description which Robinson gives of the tract sold to Harrington he defines it as “ commencing at the southeast corner of land I sold Bailey.” It is not controverted by either party that this refers to the tract, which Robinson had agreed to convey, but had not actually conveyed, to Bailey. The bond was not produced, and the demandants apparently did. not desire to avail themselves of it in locating the tract of land conveyed to Bailey, as it. did not appear that any effort had been made to obtain it. [141] Robinson originally owned a tract of land extending along 'Furnace Street in North Adams, which he conveyed in nine distinct parcels, all bounding on Furnace Street, and across which tract there was a street contemplated by him between the second and third parcels as they are numbered from the north, running easterly at a right angle to Furnace Street. This street is not included in any of the deeds, and has never in fact been opened as such. The first lot conveyed by Robinson was the extreme northern one, known as the Buckley lot, while that of the demandants is the extreme southern lot. The lot known as the O’Hearn lot is the seventh lot from the north, and was conveyed by Robinson about a year and a half after the deed to Harrington. The bond for a deed made to Bailey by Robinson having been surrendered, or, if a conveyance was made, that having been surrendered, and never having been recorded, Robinson, subsequently to the deed to O’Hearn, made the deed to Richard and Eliza Murphy under which the tenant claims. The description in this deed is as follows : “ Beginning at the northeast corner of land of William Harrington, thence northerly on the road four rods, to land of E. O’Hearn; thence westerly eleven and one half rods on said O’Hearn’s line,” &c. The northeast corner of the Harrington lot and the southeast corner of the Bailey lot were the same; and the contention of the demandants is, that the northeast corner of the Harrington lot, as a monument in the deed to Richard and Eliza Murphy, must be fixed by reversing the course first mentioned and measuring back southerly on the road from O’Hearn’s southeast corner, which is a known and fixed monument. But the descriptions in the deeds of the demandants and the tenant were not fixed by commencing from the same point as were those in the deeds of the lots which were north of them, including the O’Hearn lot; and, even if the southeast corner of this lot was thus definitely fixed, the previous grant of the Harrington lot could not be fixed thereby, as that might permit a grantor to alter the boundary of the lot he had granted, to the injury of his grantee, by a subsequent act. Even if the southeast corner of the O’Heam lot is now a known and fixed monument, it was not so at the time when the deed to Harrington was made. Leonard v. Quinlan, 121 Mass. 579. [142] The demandants have no proper ground of exception to the refusal of the presiding judge to give the second, fourth, and fifth requests for instructions, which in various forms request that the jury should, as matter of law, adopt the O’Hearn line, as exhibited on the survey made by Smith for the demandants, as fixing the southeast corner of the Bailey land. The remaining exceptions relate to questions of evidence, although two of them are to the refusal of the presiding judge to instruct according to the request of the demandants. Upon the question where the northeast corner of the Harrington lot and the southeast corner of the Bailey lot, now the Murphy lot, was, which is the vital one in the case, evidence as to what monuments were in existence, and what were pointed out at the time of the conveyance, was competent. While Harrington’s line began at Bailey’s true corner, and not at any stake or other monument, if such existed at any point differing from the true corner, in determining that corner the existence of such monuments might be shown. If at the time of the conveyance, or so nearly connected therewith that it might fairly be held to be contemporaneous, such a monument was pointed out by the grantor, or by his authority, if thereby it was not sought to alter or vary any written description in the deed, the evidence would be admissible to apply the language of the grant and locate the subject matter of it. Where uncertainty arises in the application of a description, evidence is received of all the facts and circumstances of the transaction, and the position and character of the land, for the purpose of ascertaining the real intention of parties. Natural or artificial objects may be established as bounds and monuments by proof that they were recognized and accepted as such by the grantor and grantee. Gerrish v. Towne, 3 Gray, 82, 87, 89. Chester Emery Co. v. Lucas, 112 Mass. 424, 434. Hoar v. Goulding, 116 Mass. 132. Dunham v. Gannett, 124 Mass. 151. The testimony of Harrington, therefore, that the stake was pointed out to him as the point constituting the northeast corner of his lot and the southeast corner of the Bailey lot, by the agent of Robinson, specially authorized thereto by the grantor, was competent. This was done at the time of the delivery of the deed, and must be deemed the act of Robinson, it having [143] been done by his agent, who had the necessary power and capacity. The evidence of John C. Bailey, that he knew of the stake where Harrington claimed it to have been shown to him, was also competent; and the evidence that he and Manning, they owning Lots 4 and 5 respectively, had built their division fence to correspond with the line indicated by this stake, tended to show that its position had been called to their attention. The evidence of Robinson, that the stone wall was the southern boundary of the Harrington lot, was competent, in connection with the evidence that had been given, without contradiction by him, that the stake was pointed out by his authority as the northeast corner, and that it was four rods from the wall. The demandants were not entitled to the instruction that it was not to be considered as tending to fix the northeast corner: in connection with the measurement at the stake, it had some tendency to show where that corner was. The plan made in 1872 by Brown was admissible, in the discretion of the court, as showing the situation of the land. Paine v. Woods, 108 Mass. 160, 168. No instruction was asked in regard to it; and, as the bill of exceptions states that the jury were instructed in a manner not objected to, we must assume that proper instructions were given in regard to it. The testimony of Robinson, that the lot he sold Bailey was “ No. 2 on the Brown plan,” was simply a general statement of its location. He did not undertake to define thereby its corners or boundaries, but to state its position with reference to the other lots delineated. In regard to this, as to the other evidence, as the bill of exceptions shows that the judge instructed the jury in a manner not objected to, otherwise than by refusing the instructions requested, it must be presumed that all necessary caution was given to prevent any improper use thereof. It was competent also to show by Smith, on cross-examination, that his plan did not correspond with the fences as they now exist. It was proper thus to rebut any inference that it did which might have been drawn, and to show that it was a survey only as made by him by starting from the elm tree and taking the courses and distances therefrom. Even if the fact was quite immaterial as to the present position of the fences, the extent [144] to which a witness may be cross-examined on such matters is ordinarily entirely within the discretion of the presiding judge. Rand v. Newton, 6 Allen, 38. Commonwealth v. Lyden, 113 Mass. 452. Wallace v. Taunton Street Railway, 119 Mass. 91. The refusal to give the third request for ruling was not insisted on at the argument. Exceptions overruled.