64 Me. 74 | Me. | 1873
In January, 1869, Elijah Smith conveyed a farm to the plaintiff by a deed containing these words: “Eeserving, however, possession of the buildings for my own use till the twenty-fifth day of March, 1869.” The verdict in the case establishes the fact that, at the time the deed was given, it was orally agreed by the parties to the deed that, as a compensation for the use of the buildings, as reserved to the grantor, the grantee should have all the manure made on the farm by the grantor’s cattle during that time. The manure created during this period was collected into heaps in the barns where it. was made, and then sold and delivered to the defendant by the grantor, and by the defendant paid for and removed from the premises before the twenty-fifth day of March, 1869, without any notice of a prior agreement or sale. The plaintiff was not upon the farm at the time the deed was given to him, nor at any time afterwards before the manure was removed. No other delivery of the manure was made to the plaintiff than is inferable from the situation of the parties and the facts thus stated. Several questions are raised by the defendant’s exceptions to the rulings, which were mad & pro forma.
I. It is contended that oral evidence to prove the bargain between the parties to the deed, about the manure, was improperly admitted, because it was contradictory to the terms of the deed. Put we think that the admission of this evidence amounts only to allowing the plaintiff to show that he was to give less for the land than the amount of the consideration expressed in the deed. That is, that he was to have the manure, in addition to the farm, for the sum paid by him. This affects the consideration only. In this view the evidence was admissible. In Goodspeed v. Fuller, 46 Maine, 148, where the decisions bearing on this subject are extensively collected, the court say: “The entire weight of authority tends to show that the acknowledgment of payment in a deed is open to unlimited explanation, in every direction.”
III. Upon the remaining point, we think the ruling was not correct. The presiding justice substantially instructed the jury that, upon the facts found, there was a sufficient delivery to overcome the rights of the defendant as a bona fide purchaser. Had the manure remained upon the premises at the time the grantor left them, that act would have amounted to a delivery. Nichols v. Patten, 18 Maine, 231. But the manure was all removed before the seller’s tenancy had terminated, and before the grantee had any possession of the buildings where it was. Up to the twenty-fifth day of March, 1869, the plaintiff had no more right to control or occupy the buildings than any stranger had. The manure could not pass as a part of the realty. It was
Exceptions sustained.