Pollard v. Ketterer, 221 Mass. 317

Pollard v. Ketterer

221 Mass. 317 | Mass. | 1915

Braley, J.

We are of opinion that the tenant’s exceptions should be overruled.

The parties who derive title from a common grantor own contiguous estates, and having fallen, into a controversy over the dividing line, this action is brought to determine the ownership of the strip in dispute.

The exclusive jurisdiction of writs of entry brought under R. L. c. 179, was conferred upon the Land Court by the St. of 1904, c. 448, which provided in § 8, that any decision whereby any party is aggrieved shall be subject to an appeal to the Superior Court for the county in which the land lies for a jury trial upon the facts. But the issues are to be framed in the Land Court, after the appeal is claimed. Foss v. Atkins, 193 Mass. 486.

The demandant seasonably perfected his appeal, and with the exception that the report of the judge of the Land Court who found for the tenant was admissible in evidence, the issue trans*321mitted was to be tried as if the action had been begun in the appellate court, which properly allowed the amendment making the issue more definite in form, but not changing it in substance. Luce v. Parsons, 192 Mass. 8, 12. Cohasset v. Moors, 204 Mass. 173. Weeks v. Brooks, 205 Mass. 458, 461. Old Colony Street Railway v. Thomas, 205 Mass. 529. Bigelow Carpet Co. v. Wiggin, 209 Mass. 542. Blake v. Rogers, 210 Mass. 588. St. 1905, c. 288. See St. 1910, c. 560.

If the northwesterly boundary of the premises demanded is determined, the northeasterly boundary of the tenant’s land will be ascertained, and, no question of title by prescription having been raised, resort must be had to the documentary evidence with the burden of proof resting on the demandant. Bishop v. Burke, 207 Mass. 133.

The parcels with the respective buildings or hotels formerly comprised one estate, which the owner divided by deeds of even date, wherein each tract is described as bounded by the other tract. The buildings covering very nearly the whole area had a common partition or party wall, the centre of which before the merger in owner-ship of the grantor was the division line, but the deeds to the demandant and the tenant divided the land so that the description in the demandant’s deed covers a portion of the tenant’s building, shutting off substantially the entrance from the public street on the northwesterly side, as well as depriving the tenant of the support of the common wall, and of four feet of the front bedrooms on the upper floor. It is his contention that these conditions make the descriptions ambiguous, and he furnished evidence from which the jury would be warranted in finding that the grantor intended that the true boundary line should be coincident with the centre of the common wall.

But, if evidence of this character is admissible where the language used in the deed is of doubtful meaning or where a boundary is named of a natural object, the location of which must depend on the observation and recollection of witnesses, it is inadmissible where the wording of the instrument is unambiguous and all the calls can be satisfied. Stone v. Clark, 1 Met. 378, 381. Temple v. Benson, 213 Mass. 128. Morrison v. Holder, 214 Mass. 366, 369.

The descriptions are by metes and bounds, and the record shows *322that upon application to the land the measurements give to each grantee the parcel described and conveyed. If the words “or however otherwise bounded, measured or described ” and “be all said above measurements more or less” are common to each instrument, they are not the equivalent of a general description, for no reference is made to other conveyances or sources of title. Foss v. Crisp, 20 Pick. 121. Hopkins v. Smith, 111 Mass. 176. Olson v. Keith, 162 Mass. 485. But, even if susceptible of such effect, the tenant is not helped, as they would not exclude from the operation of the demandant’s deed the parcel included in the particular description. Whiting v. Dewey, 15 Pick. 428. Eldred v. Davis, 181 Mass. 498. Hamlin v. Attorney General, 195 Mass. 309. The construction of the deeds adopted by the presiding judge, and his rulings that paroi evidence was inadmissible to vary the terms of the grants, as well as the ruling that he was not bound by the report of the judge of the Land Court in so far as it was inconsistent with his own view of the law, were correct.

The situation appears to be one of much hardship, but whether the tenant could have relief in equity by an original bill or an answer by way of equitable defence, which has not been pleaded, is not before us. Holbrook v. Schofield, 211 Mass. 234. It. L. c. 173, § 28.

The denial of the tenant’s motion, to dismiss the appeal after the rulings had been announced because no question of fact remained for the jury, was right. It is true that, the report being in the tenant’s favor, unless there was evidence to the contrary he was entitled to a verdict. Bishop v. Burke, 207 Mass. 133, 139. The statute, however, requiring the report deals only with a rule of evidence, and rulings of law found in the report may be rectified or reversed. Woodvine v. Dean, 194 Mass. 40, 42, 43. Fisher v. Doe, 204 Mass. 34, 39, 40. The true construction of the deeds was a question of law and not of fact. Eddy v. Chace, 140 Mass. 471. Lipsky v. Heller, 199 Mass. 310. And if under the rulings the facts no longer were uncertain or indefinite, the trial nevertheless was with a jury upon the issue as framed. Fay v. Alliance Ins. Co. 16 Gray, 455, 461. Carter v. Goff, 141 Mass. 123. Hillyer v. Dickinson, 154 Mass. 502, 504.

The findings shown by the report were made upon extrinsic *323evidence which the appellate court correctly held to be inadmissible, and the probative force of the report under the statute accordingly disappeared. Blake v. Rogers, 210 Mass. 588, 594. The tenant having failed to introduce any relevant and competent testimony to control the evidence introduced by the demandant, the jury properly were directed to return the answer establishing the boundary in accordance with the demandant’s title. Hillyer v. Dickinson, 154 Mass. 502, 504.

Exceptions overruled.