Pride v. Monaghan

282 Mass. 63 | Mass. | 1933

Wait, J.

This is a petition for registration of title to land in Wellesley. It is before us upon exceptions claimed to a decision of the Land Court which found title to be in the petitioners subject to a right of way in the respondent Monaghan. The easterly boundary of the lot was found to be a line running diagonally from the southwest corner of a strip thirty feet in width to the northeast corner of that strip. In 1873 the fee in the land forming the westerly half of the thirty-foot strip was in Howe and Marshall as coowners. The fee in the easterly half was in Howe alone. In 1877, Howe and Marshall made a deed to Kingsbury, the predecessor of the petitioners, bounding the land conveyed on the east by the diagonal line above mentioned. The -fee in so much of the land thus conveyed as lay easterly of the center line of the thirty-foot strip was in Howe alone. The fee in the remainder was in Howe and Marshall as coowners. The respondents contend that this deed conveyed only the land in which Marshall had a title as co-owner with Howe. The petitioners maintain that it conveyed what it described with Howe’s title to what he owned, either as cotenant or sole, and Marshall’s title to what he owned.

The respondent Monaghan relies upon Ingalls v. Newhall, 139 Mass. 268, in support of his contention. This court there considered evidence outside the words of the deed to get at the intent of the grantors; and, in deciding that the deed there in question was confined to a grant of what was held by the grantors in common to the exclusion of anything held by one of them by a different and independent title, this court gave effect to that intent, and disregarded the narrow meaning of the words used in the deed. The decision supports the trial judge here. There was evidence that Howe and Trowbridge, a former owner of part of the thirty-foot strip, contemplated using the strip as a street; that it was shown as a contemplated extension of Curve Street on plans prepared for Howe and Marshall; that in 1877, before any of these plans had been placed on record, Howe and Marshall abandoned the idea of using the strip as a street, and conveyed part of it to Kingsbury, the petitioners’ grantor, as part of the land deeded to him; that the lot so conveyed was shown as lot 18 on one of the unrecorded plans, a plan on which a line was drawn which closed off the thirty-foot strip from Curve Street as shown on the plans. There was evidence that Howe had pointed out marking stones at the southwest and northeast ends of the diagonal line as bounds of the Kingsbury conveyance. There was a release of a mortgagee’s title. We think the judge was justified in finding an intent of every one then owning the strip and the land adjoining it to abandon it as a contemplated street; and an intent of the grantors in the deed to Kingsbury in 1877 to convey to him the land described in his deed with any title either or both of them had in it.

One of the Fuller plans which showed the strip as an extension of Curve Street was placed on record in 1883. It was on the records when Monaghan obtained his title. It would indicate to him, or a searcher for him, that the land he purchased was bounded by a street. A recorded deed from Howe to a predecessor, made before the plan was recorded, bounded on Curve Street and referred to the unrecorded plan. Who caused the plan to be recorded does not appear. No act of recording the plan, however, could derogate from the deed of 1877 to Kingsbury, or bring to life the abandoned way as against Kingsbury or those deriving title under that deed. The decision that the respondent Monaghan has a right of way by prescription over a portion of the petitioners’ land is not challenged. It need not be discussed. We see no occasion for allowing costs to either party.

Exceptions overruled.