Warshauer v. Jones

117 Mass. 345 | Mass. | 1875

Wells, J.

The only exception taken at the trial which deserves consideration is that to the exclusion of the deed from Richard Blanchard to the tenants’ grantor.

By the partition between Richard and 'John W. Blanchard, the small parcel of land at the entrance of the passageway was left undivided and in common between them. It was not included in the first deed from Richard Blanchard to Greenwood, the demandant’s grantor. It did not appear that he had ever parted with his title to that parcel until he gave the deed in question. It was competent therefore for the tenants, in support of their own claim of title in the demanded premises, to show that they had acquired from Richard Blanchard any title which thus remained in him. This deed was competent also for the purpose of showing what were the limits of the premises described in the subsequent deed from the same grantor to Greenwood, which had been put in by the demandant, and which expressly referred to this, making the land conveyed by it a part of the abuttals in the later deed. The fact that the deed contained recitals which ought not to affect the demandant, did not warrant its exclusion altogether. Any improper influence from those recitals should have been guarded against by suitable directions as to the use to be made of the deed.

But we do not see that the issue in regard to the passageway could have been in any way improperly affected by the exclusion of this deed. The deed could have no effect to pass any title in the passageway. The deed of partition and that of Richard Blanchard to Greenwood conveyed the fee to the centre of the passageway, unless he was disseised when he gave the latter deed. If he was then disseised, the title of the disseisee has long since ripened into an indisputable fee. The demandant’s right to recover that part of the premises could be defeated only by establishing the alleged disseisin; and the jury have found that there was no disseisin. The deed from Richard Blanchard in 1869 could have no bearing upon that question.

As the two parts of the demanded premises are distinctly separable, and the right of recovery depends upon entirely different considerations, the new trial may be limited to that part which alone was affected by the errroneous ruling excepted to. The verdict will therefore be allowed to stand as to the passageway, but is* to be set aside as to that part of the demanded premises which remained undivided by the partition between Richard and John W. Blanchard. Exceptions sustained.