Small v. Jenkins

82 Mass. 155 | Mass. | 1860

Merrick, J.

After all the evidence on the part of the plaintiff had been introduced upon the trial, the defendant contended, and requested the court to rule, that there was none having any tendency to show any consideration for the note declared on, other than what resulted from the note itself. This was refused. And certainly, under the circumstances in which the request was made, it could not with any reason have been complied with; for as is distinctly shown in the bill of exceptions, James Coombs, who was produced as a witness by the plaintiff, had testified that the bargain was that he and Small were to have for the New York lands conveyed by them the note declared on, and the real estate in Worcester, of which a deed was made to them by Larkin Smith. According to this testimony, the conveyance of the New York lands constituted the consideration of the note.

Upon his cross-examination by the defendant, he was inquired of by the plaintiff, “ what arrangement, if any, was made about incumbrances ’’ upon the estate in Worcester. This was objected to by the defendant, on the ground that the plaintiff could not contradict the deed by oral testimony. But the court allowed the question to be put. The principle stated in the objection is undoubtedly correct; but it ha? no application to the interrogatory proposed to the witness. The object of the inquiry was not in any degree to bring out an answer which would tend to vary or contradict anything contained in the deed, but only to show in what manner the parties had, after its execution, agreed between themselves to adjust and settle their respective rights under the grantor’s covenants of warranty and against incumbrances. For this purpose the evidence sought for was clearly admissible.

The ruling of the court, that if the note was given and accepted in satisfaction or partial satisfaction of the claim for damages on the covenant against incumbrance, in Smith’s deed to the plaintiff, he was entitled to recover its contents in this action, was certainly unobjectionable, if it appears that the deeds of the New York lands did in fact convey to the grantees a good and sufficient title thereto. And that they had this effect, though it was otherwise held by the presiding judge upon the trial, appears to us to be very plain. The objection is, that a deed purporting to convey a certain and specific number of acres in a tract of land of which the grantors were owners only as tenant in common with others, is inoperative and void. It appears from the bill of exceptions that Coombs and Small each owned an undivided fourth part of land containing more than 14,000 acres in common with several other persons, and that no share in the same had ever been set off in severalty. The deed describes the land as “undivided, and known and distinguished as the southerly half part of township numbered eight, called Hollywood, in the county of St. Lawrence and State, of New York.” As the half township contained at least 14,000 acres, and as they owned one half of it in common, a conveyance of 1750 acres was a much smaller proportion of the tract than they had a perfectly good right to convey. Instead of expressing in the deed in express words or terms the part or proportion of their interest which they intended to convey, this was done indirectly, but just as intelligibly and effectually, by a conveyance of a specified number of acres. They conveyed 1750 acres undivided; so that, if the whole tract consisted of 14,000 acres, the conveyance was of iWA' Parts of it. Gibbs v. Swift, 12 Cush. 393. Jewett v. Foster, 14 Gray, 495. Battel v. Smith, 14 Gray, 497.

Exceptions overruled.