Whitney v. Miller, 205 Mass. 448

Whitney v. Miller

205 Mass. 448 | Mass. | 1910

Morton, J.

The judge of the Land Court ruled that the deed from the bank to Goodell released only such title as the bank had in and to the same land and only the same land as that described in Richardson’s deed of the same date to Goodell, and that that ruling rendered it “ unnecessary to consider the matter of adverse possession, or further record title.” The effect of the ruling was to establish the edge of the mill pond as claimed by the petitioner, instead of the thread of the stream as claimed by the respondent, as one of the boundaries of the land described in the bank’s deed. The only question before us is the correctness of the ruling so made. We think that it was right.

Although executed by different parties the two deeds could well have been found to have constituted parts of one transaction and to have been made pursuant to a common understanding and arrangement on the part of all persons interested. They bear the same date and were executed and acknowledged on the same day, and were recorded on the same day as that on which they were executed and acknowledged, in the same book, on consecutive pages. Moreover one was a conveyance of the equity of redemption in the premises described in the deed, and the other was a release by the bank of its mortgage. 8 The presumption would be very strong that the release, being a partial one, was intended only to cover so much as was conveyed by the mortgagor. But, however that may be, the description in the release from the bank concludes with the words,

“ with all the privileges mentioned in a deed given by said Samuel S. Richardson to said Goodell this day and subject to all the restrictions and reservations therein mentioned.” Hot only, as it might be argued, does this tend still further to show that the two deeds were given as parts of one and the same transaction, and that the premises released were intended to be the same as described in the deed from Richardson to Goodell, but when we *455turn to that deed to see what are the restrictions and reservations therein mentioned we find that the grantee is given “ the privilege of filling up the mill pond on the northerly and easterly sides of the aforenamed premises one rod in width from the lines above described.” “ The lines above described ” are the “ edge of my mill pond,” and “ the edge of said mill pond,” and the privilege th,us granted, which is by reference incorporated into the release from the bank, is entirely inconsistent with a construction of that instrument which would carry the boundaries on the mill pond to the thread of the stream.

What the result would be if the release stood alone, and without' any reference to the deed from Richardson to Goodell or to the restrictions and reservations therein contained, we need not consider.

Exceptions overruled.