Higgins v. Wasgatt

34 Me. 305 | Me. | 1852

The opinion of the Court, Shepley, C. J., Wells, Rice, Hathaway and Appleton, J. J., was drawn up by

Rice, J.

This is a writ of entry. Two questions only were presented at the argument for the consideration of the Court; First, what estate, if any, has the plaintiff in the demanded premises ? Second, had the tenant received actual notice of the existence of the deed from Barnes to Higgins and wife, before he took his deed from Barnes, March 6th, 1845 ?

The deed from Barnes to Higgins and wife is inartificially drawn. But every written instrument must be construed with reference to the nature of the transaction between the parties, and in such way if practicable, as to give effect to their intentions. Taking the whole instrument into consideration, there cán be no doubt that it was the intention of the parties that Higgins and his wife should take a life estate in the premises. In that estate they were siezed not by moieties, but as an entirety to be held by them and the survivor of them. Shaw & al. v. Hussey & al. 5 Mass. 522.

The second proposition presents a question of fact, purely. From the uncontradicted testimony of the witnesses, Knowles and Richardson, there can be no doubt of the fact, that the defendant was fully apprised of the existence of the deed from Barnes to Higgins and wife at the time of his purchase, and that in estimating the value of the estate purchased, especial reference was had to the incumbrance created by that instrument. In his own language he was to “step into Barnes’ shoes,” and perform his covenants. Such being the fact, no reason is perceived, either in law or equity, why the demandant should not recover.

According to the agreement of the parties, judgment is to be rendered for the demandant, and Richard Tinker, Esq. is appointed to assess the value of the rents and profits with power to examine witnesses upon oath.