O'Connell v. Cox

Barker, J. The decision of two questions will dispose of this bill of exceptions. One is whether extrinsic evidence was admissible to aid the court in construing the deed of May 7, 1878. The plaintiff contends that the deed is unambiguous and that it establishes his southwest corner at the southwest corner of the disputed land thirty-two feet from Durant’s land. But the language is “ about thirty-two feet,” and suggests that “ there is some monument, abuttal or line there,” which extrinsic evidence is admissible to fix. Blaney v. Rice, 20 Pick. 62, 64. To do this, evidence of the practical construction put upon the deed by the parties whose rights it governed was competent. [254] Reynolds v. Boston Rubber Co. 160 Mass. 240, 245, and cases cited. Whittenton Manuf. Co. v. Staples, 164 Mass. 319, 321. Menage v. Rosenthal, 175 Mass. 358, 361. The other question is whether the testimony of the defendant was admissible that his deed was delivered to him elsewhere than on the premises, but that a few days before its delivery he went upon the premises and through the house and yard in company with his grantor who then pointed out to him the fence as the boundary. The plaintiff is right in contending that this declaration, it not being shown at the trial that the grantor was not then living, was incompetent to prove that the fence was th'e boundary. Flagg v. Mason, 8 Gray, 556, 557. Long v. Colton, 116 Mass. 414, 415. Adams v. Swansea, 116 Mass. 591, 596. Peck v. Clark, 142 Mass. 436, 440. But there was a purpose for which the evidence was admissible. It was necessary for the defendant to prove seisin in his grantor. The pointing out of the fence as the boundary was part of a res gesta competent to show that seisin. When a transaction is competent declarations which are a part of and which characterize it are competent as part of the transaction for the same purpose for which it is competent. That the evidence was taken only upon the question of seisin is shown by the ruling “That paroi evidence of the acts and declarations of the defendant’s grantor made to him at the time of transfer is inadmissible and cannot aid the court in fixing the disputed line.” Exceptions overruled.