Chamberlain v. Bradley

101 Mass. 188 | Mass. | 1869

Hoak, J.

The respondents rely upon only two of their objections to the rulings at the trial, and the others are to be regarded as waived. The court are of opinion that neither of the two is well founded.

1. The petitioner introduced a certified copy from the registry of deeds of a deed from the Edgeworth Company to Homer and Winkley, being one of the mesne conveyances through which he claimed title. It purported to be executed under the authority of the corporation by its president, and the respondents objected to its admission without proof of the authority of the president to execute it; but it was admitted. This ruling seems to us correct, and in conformity with the established rules of evidence.

It is conceded that an office copy of a deed is generally admissible in evidence where the party claiming under it is not the grantee. Ward v. Fuller, 15 Pick. 185. Between natural persons the production of such a copy is evidence of the execution of the deed by the person whose deed it purports to be; of its delivery; of its due acknowledgment; and, in the absence of other evidence, of the seisin of the grantor. This involves the presumption or inference of fact, 1. that the seal was the seal of the grantor; 2. that it was affixed by him or by his authority; 3. that he signed his name or authorized it to be signed for him in his presence ; 4. that it was the grantor who made the acknowledgment ; 5. thát the certificate of the magistrate is genuine ; and 6. that the grantor was seised of the land which the deed purports to convey.

There is nothing to be inferred, in case of the admission of an office copy of the deed of a corporation, which goes farther than this. It is presumed to be the deed of the corporation, which it purports to be. The seal is presumed to be the seal of the corporation, affixed by its authority, as in the case of a private person. The authority to execute the deed is of course essential to its validity; but so is the genuineness of the signature of the grantor in any case; and there seems to us as much reason to infer the one from the existence of the record copy as the other. The copy was admissible, because it purported to be the duly executed deed of the corporation, and was therefore pre-' sumed to be so; and the existence of all the facts necessary to make it so, is presumed as a consequence.

2. The petitioner introduced, as evidence of his title the record of á judgment in favor of the Edgeworth Company upon a writ of entry for the foreclosure of a mortgage. Upon inspection of this record, there appeared to be a variance between the description of the premises demanded in the writ of entry, and the description of the land in this petition. The respondents objected to the record for this reason, and asked the presiding judge to rule that the possession gained under that judgment was insufficient for the purpose of foreclosure ; which the judge declined to do and admitted the record in evidence.

The descriptions in the record and in the petition describe the land as 11 lot No. 4 on a plan drawn by Alex. Wadsworth, dated Sept. 12, 1848 ; ” and give the boundaries substantially alike, except that in the writ of entry one line is wholly omitted, and thereby it appears that the lines given would not inclose any piece of land, because the second line given runs in the opposite direction to the first. The petition sets forth the plan as recorded in the Middlesex registry of deeds.

There can be no doubt that a reference to a plan which is recorded, in like manner as a reference to a recorded deed, may be sufficient to identify land, and aid an imperfect description in a deed of conveyance, or in a levy on execution. Boylston v. Carver, 11 Mass. 515. Jenks v. Ward, 4 Met. 404. Allen v. Taft, 6 Gray, 552, 555. The statute provision in relation to a levy is, that the land “ shall be described by metes and bounds, or otherwise, with as much precision as is necessary or proper in any common conveyance of land, and in such manner that the premises may be known and identified.” Rev. Sts. c. 73, § 5. Gen. Sts. c. 103, § 5. A levy is, in effect, a statutory conveyance. But a more stringent rule has been applied as to the certainty of description required in a writ of entry, dower, ejectment or partition, where the judgment is to fix or transfer the title or possession adversely. In Atwood v. Atwood, 22 Pick. 283, it is said that “ when lands are demanded, the description of them must be so certain that seisin may be delivered by the sheriff without reference to any description dehors the writ.” In that case, the boundaries of the land in which dower was claimed were not given so as to describe it, but there was a reference to a recorded deed; and it was held that the defect could not be cured by this reference. In Stearns on Real Actions, 151, it is said that “ the property sued for may be described as ‘ a certain messuage,’ called by a particular name by which it is known, or with the abuttals; ” and that “ the only practical rule seems to be, that the description should be so certain as to enable the tenant to understand what is demanded against him, and the sheriff to deliver the seisin, without any information from the demandant.” Judge Jackson gives the rule somewhat more liberally ; saying only that “ the premises demanded must be described in the count with as much precision as in any common conveyance or assurance of land.” Jackson on Real Actions, 13,14.

But it is to be observed that in most of the cases the objection to the insufficiency of the description was taken at the trial or in arrest of judgment. And we think that after verdict, and especially after judgment and possession delivered under it, every possible intendment should be made in favor of the sufficiency of the count or declaration, if upon any possible state of proof it could be supported. Thus, in Bindover v. Sindercombe, Ld. Raym. 1470, in error upon a judgment in ejectment, it was objected that one of the abuttals was uncertain because it referred to “a boundary to be erected,” and “the court were of opinion that this was certain enough; for though the boundary was said 1 to be erected,’ yet this being after a verdict, they could not intend but that evidence was given upon the trial to support this description, and that, though the boundary was not perfectly erected and completed, there were some marks where it was designed to be erected.” The reporter adds his opinion that an ejectment for “ a close of meadow called Partridge Lees. containing - acres, more or less,” was well enough, and doubts the accuracy of a statement that it had been decided otherwise

The premises were described in the record admitted in evi dence, as “ lot No. 4 on a plan drawn by Alex. Wadsworth, dated Sept. 12,1848.” It appears that there was such a plan recorded, and that it is in fact the same lot of which partition is now sought, and of which possession was given under the judgment for foreclosure. The description seems therefore to have been sufficient to satisfy the parties to the judgment, and to have been in fact true. It may have been that “ lot No. 4 on Wadsworth’s plan ” was a description by which the lot of land was well known at the time of that suit. We therefore think that it does not judicially appear that the land could not have been found by the description in the record, without reference to the plan for farther information. The errors in the boundaries given do not contradict the remainder of the description, but are obviously defective, and describe no piece of land completely. They may therefore be disregarded.

Judgment on the verdict.