White v. Shippee, 216 Mass. 23

White v. Shippee

216 Mass. 23 | Mass. | 1913

Braley, J.

It was correctly ruled, that the prior deed from Ebenezer Rice “to one Griffin and his assigns” of the right to *25mine soapstone and other minerals created only a life estate, and in the absence of any recitals or statements to the contrary it must be assumed from the bill of exceptions, that Stebbins Rice to whom Ebenezer subsequently conveyed the farm, and under whom the petitioner by mesne conveyances derives title, was a purchaser for value without either actual or constructive notice of the incumbrance. Sedgwick v. Laflin, 10 Allen, 430. Wenz v. Pastene, 209 Mass. 359. The warranty deed, however, contained this clause: “The said premises subject to a mortgage to Roland Sears of two hundred dollars, which together with the Soap Stone Ledge is excepted from sale. ” The petitioner contends that this clause should be construed as meaning only a reference to incumbrances which were excepted from the grantor’s covenant of warranty. Undoubtedly where the terms of a deed are ambiguous paroi evidence of the circumstances under which the grant was made is competent. Derby v. Hall, 2 Gray, 236, 243. But while the reference raises a conclusive presumption of the grantor’s knowledge of the ledge, the petitioner fails on the record to show that Stebbins Rice even then knew of the life estate. The language used, although technically inapt as to the mortgage, is appropriate as to the ledge, and when so construed the grantor’s intention by the exception to take out of the premises conveyed the portion referred to, is free from, ambiguity, and the ruling that no title thereto passed by the grant was right. Ashcroft v. Eastern Railroad, 126 Mass. 196, 198.

Nor has the petitioner acquired ownership of the ledge by adverse possession. The evidence fails to show, that with either the actual knowledge or the acquiescence of the owner, the petitioner and his predecessors in title asserted openly and notoriously an adverse continuous claim which during the period required had ripened into a title by prescription. Bigelow Carpet Co. v. Wiggin, 209 Mass. 542. The parties agreed that the outcropping ledge which had not been quarried during the forty and more years elapsing since the conveyance to Rice and the ownership of the petitioner, could be definitely located, and that no way had been defined or established connecting the ledge with the public road. But the mere failure of Ebenezer Rice during his life or of his heirs to quarry the ledge, did not devest his title, and the erection and maintenance of a fence around the entire *26tract of forty acres, while significant of an assertion to the enjoyment of the whole by the grantee, and those succeeding him, furnished of itself, as the trial judge properly ruled, no proof of the other essential elements. Sargent v. Ballard, 9 Pick. 251. Bigelow Carpet Co. v. Wiggin, 209 Mass. 542.

The final ruling that the petitioner had not established any title to the ledge having necessarily resulted from the previous rulings, the exceptions must be overruled.

So ordered.