Temple v. Benson, 213 Mass. 128

Temple v. Benson

213 Mass. 128 | Mass. | 1912

Bbaley, J.

The petitioner by mesne conveyances and the *132respondent by direct grant derive title to their respective lands which are contiguous on the south from a common grantor Sylvester A. ICemp, and as the duly recorded deed from him to • Joseph Tinney under whom the petitioner claims, antedates his deed to the respondent, it follows upon comparison of the descriptions, that when the position of the disputed southerly line of the petitioner’s lot has been ascertained the northerly line of the respondent’s lot also will have been defined, and the controversy determined.

It is a familiar rule in the construction of deeds, that, where the land conveyed is described by courses and distances and also by monuments which are certain or capable of being made certain, the monuments govern, and the measurements if they do not correspond must yield. Howe v. Bass, 2 Mass. 380. Pernam v. Wead, 6 Mass. 131. Mann v. Dunham, 5 Gray, 511, 514. George v. Wood, 7 Allen, 14. Morse v. Rogers, 118 Mass. 572, 578. Percival v. Chase, 182 Mass. 371. In its application natural or permanent objects, such as streams or rivers and the shore of the sea, or highways or other lands, or artificial land marks or signs such as fences, walls, a line, a building, or a stake and stones, are to be treated as monuments or boundaries. Storer v. Freeman, 6 Mass. 435. King v. King, 7 Mass. 496. Flagg v. Thurston, 13 Pick. 145. Whitman v. Boston & Maine Railroad, 3 Allen, 133. Paine v. Woods, 108 Mass. 160. Boston v. Richardson, 13 Allen, 146. Needham v. Judson, 101 Mass. 155. Pernam v. Wead, 6 Mass. 131. Smith v. Smith, 110 Mass. 302. Charlestown v. Tufts, 111 Mass. 348. Frost v. Angier, 127 Mass. 212. And their identity may be established by extrinsic evidence. White v. Bliss, 8 Cush. 510, 512. The only exception recognized is, where, by strict adherence to monuments, the construction is plainly inconsistent with the intention of the parties as expressed by all the terms of the grant. Davis v. Rainsford, 17 Mass. 207. Murdock v. Chapman, 9 Gray, 156. George v. Wood, 7 Allen, 14.

The petitioner had the burden of proving himself entitled to registration of the premises as described in the application. Bigelow Carpet Co. v. Wiggin, 209 Mass. 542.

On the face of the deed no uncertainty as to the distances or the location of the monuments or boundaries is disclosed, yet upon applying the description to the land it became apparent that the *133southerly line must run at a right angle westerly from the stakes and stones in the west side of Summit Avenue “to land formerly owned by J. M. Canedy” or the call for a distance of eight rods cannot be satisfied. But if, as claimed by the respondent, this line should run from the stake and stones to the Canedy land, the abuttal or boundary on the west, at a point distant seven rods from the south side of East Quincy Street, the boundary on the north, it would exceed eight rods, and the area of the petitioner’s land called for by his deed would fall correspondingly short, as is clearly shown by the first sketch or plan forming part of the exceptions.

The parties agreed that, as marked on the plan, the starting point of the lot was the northeast corner at the intersection of East Quincy Street with Summit Avenue, which never had been changed, and the respondent’s exception to the admission of the deed of ICemp to Pattie D. Frost would seem to have become immaterial. It was, however, properly admitted. "At the date of the deed to Frost East Quincy Street, although a private way opened by the grantor was a boundary common to the land conveyed to her as well as to the tract, a part of which was later deeded to the respondent, and grants of adjacent premises even between strangers are admissible where the location of the land for which registration is sought is in dispute. Sparhawk v. Bullard, 1 Met. 95, 100. Devine v. Wyman, 131 Mass. 73.

The northerly boundary and point of beginning being certain, the easterly boundary was the west side of the avenue, measuring six rods to a stake and stones. The termini and length of the first course were thus fixed, and the stake and stones from which the second or southerly course starts locates and controls the easterly end. No further description is given, and the presumption is that this course, whatever the interior angle may be, ran straight to the land on the west, although it could not be deflected by paroi evidence to a point north of the Canedy land. Allen v. Kingsbury, 16 Pick. 235. Jenks v. Morgan, 6 Gray, 448. Hovey v. Sawyer, 5 Allen, 554, 555. Henshaw v. Mullens, 121 Mass. 143. The angle of departure however is not given, and, as the southerly line claimed by each party is not irregular, but when projected extended directly from landmark to landmark, a material discrepancy in the measurement of the third or westerly course *134would be caused whichever position is taken. A latent ambiguity, as the judge properly ruled, had been developed which could be removed only by proof of extrinsic facts. Frost v. Spaulding, 19 Pick 445. Stone v. Clark, 1 Met. 378. Stevenson v. Erskine, 99 Mass. 367. Miles v. Barrows, 122 Mass. 579. Graves v. Broughton, 185 Mass. 174. Haskell v. Friend, 196 Mass. 198. Weeks v. Brooks, 205 Mass. 458, 462, 463. Compare Hall v. Eaton, 139 Mass. 217.

It appears from the chain of title that Kemp, when the owner of the entire tract shown by the plan, first conveyed the portion lying northerly of the respondent’s land to Joseph Tinney, and the declarations of Kemp to Tinney made while measuring the land, and contemporaneous with the giving of the deed, “that from there,” meaning the stake and stones, “they turned a right angle because Kemp stated he wanted to measure at right angles so that all the lots would come square, and measured eight rods to the old stone wall on the Canedy land,” was clearly admissible. Abbott v. Walker, 204 Mass. 71, 73. Blake v. Everett, 1 Allen, 248. Davis v. Sherman, 7 Gray, 291. The subsequent conveyance of Kemp to the respondent also shows a rectangular lot, and the description is confirmatory of the grantor’s previously expressed purpose in fixing the shape of the lots, that the respondent’s northerly line should run at a right angle with the westerly side of Summit Avenue, and not at an acute angle as the respondent contends.

The adverse finding of fact of which the respondent complains, that the southerly line should be established as contended for by the petitioner, having been warranted by the evidence, is conclusive, and the decision that the petitioner had the right to have his title confirmed and registered as described in the application shows no error of law. American Malting Co. v. Souther Brewing Co. 194 Mass. 89. R. L. c. 128, § 37.

Exceptions overruled.