Cunningham v. Webb

69 Me. 92 | Me. | 1879

Libbev, J.

Jane Cunningham and others owned a farm, situated in Swanville, called the homestead of Jacob E. Cunningham ; and on the 24th day of April, 1874, they conveyed to the demandant that part of the farm lying north of the road running through it, with the following exception : “ Reserving and excepting the buildings on said premises westerly of the center of the main house, and the land on which they stand, and the privilege of going in and out of the same, and driving around the same, and one undivided half part of the barn on the easterly side of the center of the main house, and the right for the said Jane Cunningham to take for her own fire, during her natural life, what wood she may need for said fire from the wood lot on said premises.” At the time of the conveyance there was a building, which was erected about fifteen years before, attached to the main barn, with a passage way from the barn into it, used in connection with the barn for storing hay and keeping sheep, called the sheep-shed. A barn-yard was fenced, adjacent to the barn and shed, and used with them.

The tenants claim and occupy the premises excepted in said deed under Jane Cunningham. In 1876 the demandant and tenants made a parol partition of the barn, sheep-shed and barn-yard, by which a part of each was set apart 'for the sole use of the tenants.

The contention between the parties is, I. Whether an undivided half of the sheep-shed and the land on which it stands and the barn-yard were excepted from the grant by the deed.

II. If so, whether the parol partition is a defense to the action.

Upon the first point the court is of opinion that the shed must be regarded as a part of the barn (Hilton v. Gilman, 17 Maine, 263); and that the land on which it stands and the barn-yard are within the exception, under the general description of barn, as applicable to the purpose for which the building and land were used at the time of the grant. This construction rests upon the sound and reasonable rule that, “ whenever land is occupied and improved by buildings or other structures designed for a particular purpose which comprehends its practical beneficial use and enjoyment, it is aptly designated and conveyed by a term which describes the purpose to which it is thus appropriated.” Johnson v. Rayner, 6 Gray, 107.

A grant of a house standing on a lot of land, fenced and used with the house as a yard and garden, conveys not only the house but the lot of land on which it stands, unless it appears from the deed, or the facts and circumstances existing at the time, applicable to the estate, that that was not the intention of the parties. Moor v. Fletcher, 16 Maine, 63. Sanborn v. Hoyt, 24 Maine, 118. Derby v. Jones, 27 Maine, 357. State v. Burke, 66 Maine, 127. Whitney v. Olney, 3 Mason, 280. Allen v. Scott, 21 Pick. 25. Amidown v. Ball, 8 Allen, 293. Corporation v. Chandler, 9 Allen, 164.

There is nothing in the deed, or the facts and circumstances applicable to the property, which shows that the parties intended to limit the legal effect of the language used, but the contrary. It could not have been their intention to except the barn as personal property, to be removed by the grantor, as an undivided half only is excepted. . Then the defendant’s grantors were the owners of the farm, having all of the buildings on the north side of the road running through it. They conveyed to the demand-ant that part only lying on the north side of the road, excepting a part of the buildings, to be used and to go with the other part of the farm. It must be inferred that the parties intended that the land used in connection with them, and necessary to their beneficial use and enjoyment as farm buildings, was embraced in the exception; and soon after the conveyance they so construed it by the parol division.

As to the second point relied on in defense, we think it clear that, under the pleadings, the parol partition is no defense to the action; especially as it does not appear that the tenants, with whom the partition was made, owned the fee.

Judgment for the demandant for an undivided half of the demanded premises.

Appleton, C. J., Walton, Barrows, Daneorth and Peters, JJ., concurred.