Putnam v. Bond
100 Mass. 58
Mass.
1868
Check Treatment
Gray, J.

The boundary called for in the deeds of the plaintiff was “ Shirley line,” and in the deed on which the defendant relied, “ Lunenburg line.” These words urould be equally satisfied by the line which was in law the boundary between the two towns, or by a line which was universally considered and reputed to be such boundary at the time of the making of the deeds in question. Evidence was introduced at the trial that the legal line between the towns differed from what it was universally supposed to be, and thus disclosed a latent ambiguity, which could only be cleared up by oral evidence. The case comes exactly within the familiar maxim, as long ago expounded by Lord Bacon. Ambiguitas verborum latens verificatione suppletur; nom quad ex facto oritu/r ambiguum verificatione facti tollitur. “ Ambiguitas latens is that which seemeth certain and without ambiguity for anything that appeareth upon the deed or instrument, but there is some collateral matter out of the deed, that breedeth the ambiguity.” “ As if I grant my manor of S. to I. F. and his heirs, here appeareth no ambiguity at all; but if the truth be that I have the manors both of South S. and North S. this ambiguity is matter in fact; and therefore it shall be holpen by averment, whether of them was that the party intended should pass.” Bac. Max. reg. 25.

In the case of Cook v. Babcock, 7 Cush. 526, on which the defendant relies, the deed of land in Blandford, bounded “ north on the line of said Blandford,” which was held to be limited to the legal boundary line of the town, was made after that line had been established by acts of the legislature; the evidence offered and held incompetent went no further than to show that before those acts a different line defined by marked trees had been understood and reputed to be the boundary line of Bland-ford ; and Chief Justice Shaw distinguished the case from such *61a one as the present, saying, “ When indeed upon application of the description to the land, it is doubtful what was intended, this is a latent ambiguity, and then evidence aliunde may be given; as where a description gives the line as running to a maple-tree marked, and two maple-trees are found, either of which would answer the description ; ” and again : “ When the true line has been long doubtful, and conveyances have been made, bounding on the reputed or supposed line, or line of actual holding and possession, and such reputed or supposed line is capable of being shown by proof, such conveyances will have their full effect in passing the land up to such supposed line, though a different line be afterwards fixed by the legislature as the true line by a declaratory act.” We fully concur with the judgment and the reasons of the supreme court of New Hampshire in Hall v. Davis, 36 N. H. 569, in which it was held that the words “ Derry old line,” used in a deed to define a boundary, were susceptible of various meanings, as the original line of Londonderry, or any other line marked by monuments and called by that name; and that evidence that there was such another line showed such an ambiguity in the words of the deed as to admit of paroi testimony to prove which line was intended to be designated thereby. Another good illustration of the principle is afforded by the case of Sutton v. Bowker, 5 Gray, 416, in which goods were by the terms of a bill of lading to be delivered “ at the Essex Railroad Wharf; ” it appeared that the Essex Railroad Company owned but one wharf, and there was another generally known as the Essex Railroad Wharf and used by the railroad company to receive merchandise at; and it was held that, for the purpose of showing that the latter wharf was intended, evidence of the comparative ease of access and rate of freight to the two wharves, and of the previous dealings of the parties under similar bills of lading, was admissible.

In the case at bar, the jury were therefore rightly instructed that, although the presumption upon the face of the deeds would be, that they conveyed to the true record line, yet that line was not necessarily the boundary between these parties, but if a dif*62ferent line was shown to exist, adopted by the towns and theii inhabitants, and considered universally (which would include the parties to the deeds) to be the Shirley and Lunenburg line, that would be the boundary referred to in the conveyances.

But in one particular the instructions of the learned judge who presided at the trial were not sufficiently guarded. The plaintiff had offered evidence that from 1830 to 1848 the line to which he claimed had been perambulated as the town line between Shirley and Lunenburg; and the jury, besides the instructions already mentioned, were instructed that, “ if the towns of Lunenburg and Shirley had adopted a line, different from the true one, as the line between the towns, the deeds would convey to that line, if there were no monuments to fix the line intended.” This instruction was erroneous. The towns had no power to alter the boundary line between them. The perambulations of the boundaries of the towns by the selectmen in the execution of the duty imposed upon them by law were doubtless competent, but they were not conclusive, evidence of the line intended by the parties. Rev. Sts. c. 15, §§ 1-7. Middleborough v. Taunton, 2 Cush. 409. Lawrence v. Haynes, 5 N. H. 33. And there is no absolute presumption of law that parties to a deed intend to govern themselves by a boundary line adopted by towns or town officers, which is proved not to accord with the true and legal boundary line; and when the words which they use are equally applicable to either, it is for the jury, upon a consideration of all the circumstances, to determine which was actually intended. Exceptions sustained.