Stowell v. Buswell

135 Mass. 340 | Mass. | 1883

W. Allen, J.

The court correctly ruled that the demand-ant’s deed to Carlton included the demanded premises, and properly excluded the paroi evidence offered to affect its construction. The boundaries given in the deed are “measuring fifty-four and one third feet on Orchard Street, and the west line running one hundred feet and the east line one hundred and five feet southerly, and both at right angles to Orchard Street.” The land is also mentioned as “ lot No. 27,” and there are also three other separate descriptions by references to former deeds. All these descriptions plainly include the demanded premises, and the demandant’s title rests upon the assumption that they do. The only ground upon which it is contended that there is any ambiguity in the deed to Carlton is found in the words at the close of the descriptive part, “ meaning and intending to convey all the land as now fenced.” It appeared that there were fences upon Orchard Street, and upon the east and west sides of the land, extending the distances named in the deed, but there was no fence upon the south side. There was a fence extending half-way across the lot from the east side twenty-one feet distant northerly from the south line of all the descriptions before referred to; and westerly from the fence were a gateway and shed extending to the west side of the lot.

The demandant contends that the fact of the fence, gateway and shed extending across lot No. 27 twenty-one feet from its southerly boundary, and the fact that there is no fence upon its southerly boundary, render the deed ambiguous as to the southerly boundary of the granted premises, so as to let in the paroi evidence offered. But that boundary is fixed, not only by the length of the east and west lines given in the deed, but also by referring to the premises as lot No. 27, and by three distinct references to separate deeds which are clear and unambiguous. To refer to one of them, the deed of Bean. By the deed to Bean of May 9, 1855, the westerly and southerly parts of lot 27 were conveyed to him, and in 1860 the remaining part, being the northeasterly corner of lot 27, was conveyed to Bobinson, thus dividing it into two lots; one of them, the Bean lot, including, by particular description, the demanded premises. The fence referred to was between a part of the Bean lot, being a part of the demanded premises, and the Bobinson lot, and the gateway and shed were wholly on the Bean lot, and had no connection with the Bobinson lot. The existence of the fence and shed raises no ambiguity in the description of the land in parcels by reference to the Bean and Bobinson deeds. Without question, the shed was upon one parcel, and the fence was the boundary between the two. If this were the only description in the deed to Carlton, it would not be contended that the expression “ intending to convey all the land as now fenced,” would raise a doubt whether the whole of the Bean lot and of the Bobinson lot were included in the description.

And the same conclusion would be reached by an examination of the other deeds referred to. The demandant was the owner of the whole of lot No. 27; he conveyed it by a reference to the name of • the lot, and by lines and distances, and by reference to former deeds, all clearly including the whole of it; and the words inserted, with the fact that there was no fence upon one side of the lot, and that there was a fence running partly across it, on the line between two parcels into which it had been divided, and which are separately referred to in the deed, do not disclose any ambiguity in it. The provision itself was not apparently intended for a description of the land as bounded on all sides by fences, but to indicate that it included all the land within the boundary fences which were there; it does not exclude land outside of a boundary fence, nor exclude a boundary where there is no fence.

It was admitted that, if this ruling of the court below was sustained, it would be decisive of the case; and it is not necessary to consider the other questions argued.

Exceptions overruled.