80 Mass. 497 | Mass. | 1860
The trial of this case did not proceed far enough to lead to a comparison of the titles of the respective parties to the premises in controversy. The plaintiff proved that he was in possession; this was a good title as against strangers, and would enable him to maintain trespass against the defendant, if he failed to show title in himself or in some one of those by whose authority he entered the premises. But the defendant was not permitted to go into full proof of his title. He was cut off by the ruling of the court, that the deeds under which he justified the alleged trespass conveyed no title to the grantees. The plaintiff recovered solely on his possessory title. We have no occasion therefore now to decide whether the ruling of the court as to the validity of deeds under which the plaintiff claimed to hold the premises was correct or not.
But we think it clear that the court erred in ruling that the deeds offered by the defendant would not give him an interest in common in the land described therein. The deed from Boardman to Smith conveyed “ two and one quarter acres undivided in lot seventeen; ” the deed from Pearson to John M. and David Smith conveyed “ three and a quarter acres more or less in number seventeen,” part of twenty eight acres and sixty rods, described as being “ in common pasture lying in common with other proprietors ; ” the deed from Noyes to Currier granted two and a half acres in the common pasture “in lot number seventeen and is undivided.” By these deeds we think it clear that the grantors intended to convey an undivided interest in the whole of lot number seventeen, in the proportion which the number of acres specified and granted by the deed bears to the whole quantity of land contained in that lot. The use of the word “ undivided ” and the phrase “ lying in common ” show that the interest conveyed was undivided and in common, and not an estate in severalty; and the quantity of land granted is ascertained and fixed with certainty by the grant of a designated aliquot part of the whole land owned in common. Jewett v. Foster, ante, 497. Exceptions sustained.