196 Mass. 454 | Mass. | 1907
The pole and the anchor to which the guy was attached had been set in the ground and the wires had been strung before the plaintiff became the owner of the premises, and she cannot therefore maintain an action for the trespass, if any,
The premises in question were conveyed to the plaintiff by Fannie M. and H. B. Callender, who formerly owned them as tenants in common. The defendant relies upon a deed from Fannie M. Callender to the American Telephone and Telegraph Company of Massachusetts of “ the right to construct, operate and maintain its lines over and along the property which I own or in which I have any interest in the town of Sheffield . . . including the necessary poles and fixtures along" the roads, streets, or highways adjoining the property owned by me in said town . . . with the right to set the necessary guy and brace poles.” This deed was duly executed, acknowledged and recorded before the conveyance to the plaintiff. There also was an instrument purporting to convey to the same grantee like privileges from the other tenant in common, H. B. Callender. This, though under seal, was not acknowledged or recorded, and the plaintiff had no notice of it as, upon evidence warranting him in so doing, the presiding judge must have found.
It is well settled that a conveyance by metes and bounds by a tenant in common of a portion of the estate, if not void, is at least voidable as against his co-tenant. Frost v. Courtis, 172 Mass. 401. Barnes v. Boardman, 149 Mass. 106. The defendant concedes, and rightly, that no distinction can be made between such a conveyance and the conveyance of an easement, for the reason that the latter would or might operate equally to the
The defendant contends that the conveyance from Fannie B. Callender was ratified and affirmed by her co-tenant by the instrument which he executed to the American Telephone and Telegraph Company. But there are two objections to this contention. First, the instrument was not recorded and the plaintiff had no notice of it. As against her, therefore, it did not and could not operate as a conveyance of an interest in the real estate. Secondly, the instrument from H. B. Callender did not purport to be and was not an affirmation or ratification of the conveyance by Fannie M. Callender. It was, if anything, a conveyance by him of a right similar to that which she attempted to convey, and was void as against her just as her deed was void as against him. What the effect would have been if H. B. Callender had in fact ratified and affirmed the deed of Fannie M. Cal-lender, and the plaintiff had taken without any notice thereof, it is unnecessary now to consider.
Exceptions overruled.