Smith v. Higbee

The opinion of the court was delivered by Rebfield, J. — It is in vain for the plaintiff to expect to recover upon the contract declared upon in the first count, under the circumstances proved in the case. That contract was in writing, but not under seal, and was for the conveyance of the land described, free from all incumbrance. Subsequently, the parties met and the plaintiff accepted a deed of the land, and, as some doubt arose in the mind of the parties, in relation to a claim which Isaac Higbee was supposed have to aright of way across the land,the plaintiff took the bond declared upon in the second count, for his indemnity against that claim. It is very obvious, that the execution of the deed and bond, as it was a full performance of the first con [123] tract, must have been so considered by the parties. The bond i* • . _ , ^ being a security of a higher nature, although of less extension in the present case, would merge the plaintiffs claim, so far as it did extend, and the remainder of the simple contract must be considered as fulfilled, by the deed, or abandoned by the plaintiff, unless very clear proof is adduced to show such was not the intention of the parties. There being no such proof given, the jury were well directed to find for the defendant on this count. In regard to the second count, the bond declared upon only provides against a right of way in Isaac Higbee. This supposed right of way is across a narrow strip of land, (18 rods wide,) adjoining the “ ledge lotand was first reserved by Elnathan Higbee, when he deeded the land to Lewis Higbee, January 1, 1811, in the following words: “Except that I reserve unto myself my heirs and assigns, the right of a road across said land to my quarry of stone.” It is said, in argument, that this is not a good reservation. I apprehend, however, that the present well established doctrine upon that subject, as well as all other matters of construction, is, to treat all such questions as mere inquiries into the intention of the parties. In this view there can be little doubt this was a good reservation of right of way to Elnathan Higbee, his heirs, &c. White v. Crawford, 10 Mass. R. 183. The only remaining question, is, whether this right of way passed to Isaac Higbee by the deed to him from Elnathan Higbee of the “ ledge lot,” dated April 8th, 1825. It appears by the case, that no such right, of way existed, or was claimed in Isaac Higbee, as of necessity, or indispensable convenience to the enjoyment of the principal thing conveyed. In such case, the right of way might pass under the general term, “ appurtenances,” or even by implication, without the use of that term in the deed. When Elnathan Higbee conveyed this “ strip” of land to Lewis Higbee, it was convenient that he should reserve a right of way across it to his other lands, which were thus cut off from his farm. But when he conveyed these other lands to Isaac Higbee, and not the principal farm, there was no necessity of granting to him this reserved right of way. It is true he did convey “ all the right, title, interest and property or demand he had in or to the land described,” but expressly excepted what he had before [124] that time conveyed to Lewis Higbee. This right of way existed, not in the land conveyed, but in that excepted from the conveyance, and was in no sense necessary or convenient to the enjoyment of the land conveyed to Isaac Higbee. It was nota thing appurtenant to the land conveyed,but existing, by way of reservation, in another piece of land. It is in vain, then, to pretend that it passed by the deed. The fact that Isaac Higbee immediately claimed this right of way of Lewis Higbee, and was by him permitted to exercise it, will not aid the plaintiff. Lewis Higbee knew that a right of way existed, formerly, in Elnathan Higbee, and when he conveyed the land, for whose enjoyment that right of way was reserved, he might naturally conclude the right of way would also be conveyed ; but, his permitting Isaac Higbee to use it does not tend to show that it was conveyed. It is only the acts of the parties to a deed or contract, which are ever permitted to be shown in order to fix the construction of the contract, and never, in that case even, unless it be to determine the sense in which the parties intended to use an equivocal term. 4 Day’s R. 265. Rich v. Elliot, 10 Vt. R. 213. The result is that, although this right of way may exist in some one, it did not in the one against whose claim the bond provides an indemnification. The plaintiff indeed claims, that Isaac Higbee had acquired title to this right of way, by prescription. But we do not well perceive any good basis for any such presumptive right. Possession merely, as a ground of claim of title, must always be referred to the claim of right which the party makes at the time, and, ordinarily, a jury are not to presume a grant contrary to the rational probabilities of the case. “ It is, says Mr. Starkie, 2, Ev. 672, (6 Ed.) a mere question of fact for the jury, under all the circumstances of the case, whether a conveyance has actually been made to the party in possession.” Fenwick v. Reed, 7 Eng. C. L. 79. 5 B. & A. 232. The same doctrine is held in Foley v. Wilson, by Lord Ellenborough, 11 East, 56. And also by Mr. Justice Story, in Ricard v. Williams, 7 Wheat. 59. So also of Ch. Justice Parker, in Gayetty v. Bethune, 14 Mass. R. 49. Where the beginning and continuance of the possession is satisfactorily explained, short of presuming a grant, it is never done, perhaps, and, in the present case, where the [125] claim of the party in possession has all along been referred to a deed, which is finally shown to convey no right, it would be rank absurdity to presume another independent grant, which was never pretended, but always practically denied. Paine’s C. C. R. 457. Judgment affirmed.