Benjamin Melvin vs. Proprietors of the Locks and Canals on Merrimack River, 5 Met. 15

Wilde, J. This is a writ of entry, wherein the demandant demands possession of a parcel of land in the city of Lowell, of great value, and consequently the decision of the case is of great importance to the parties ; and the questions to be decided, or some of them, are not free from doubts and difficulties, which we have found on examination somewhat perplexing ; as to which, however, on reflection, taking into consideration all the facts and circumstances of the case and the authorities cited, we have come to a conclusion which we deem correct and satisfactory.

Much evidence was introduced at the trial, as to boundaries and other matters ; and several questions of law and fact were raised, only one of which, however, was submitted to the jury. The title of the tenants was derived from Dr. Jacob Kittridge, who derived his title by a mortgage deed to him from Benjamin Melvin, the father of the demandant; and the question, whether this mortgage deed included the demanded premises, was left to the jury, who found that it did not.

Another important question was, whether the tenants had made out a good title by disseizin ; and this question, by the consent of parties, was reserved for the determination of the court — the demandant admitting that there was proof of an adverse possession in the tenants, and those from whom they claim title, for more than thirty years before the institution of this action ; but they denied that these adverse possessions were so connected by the tenants’ title deeds, as to constitute a continuous disseizin ; and this is one of the principal questions submitted to the consideration of the court, upon the legal construction of those deeds.

It was fui ther agreed, that if, upon all the evidence and all the. inferences that a jury might properly draw from the facts proved, the court should be of opinion that it was competent for the jury to have ■ found a verdict for the tenants, on the ground of adverse possession and disseizin, then the demandant was to become non-suit. This agreement secures to the tenants, substantially, the benefit of a verdict in their favor on this ground of defence.

But we do not think much depends on the form of the agreement ; as the questions of law are to be principally, if not wholly, decided upon facts respecting which there is no dispute. The descriptions in the several deeds are nearly similar, and we do not consider the variance in the language of them as material in the decision of the question of their construction. Some of them are deeds of release and quitclaim, and others contain the usual covenants of seizin and general warranty. This difference also we do not consider of much importance.

The question depends mainly on the description of the granted or released premises. The land, as conveyed in the deeds from the heirs of Dr. Kittridge to Moses Cheever, is described as follows : A certain share of “ about one hundred acres of land, be the same more or less, with the buildings thereon standing, situate in the town of Chelmsford, in the county of Middlesex, being the same estate on which the said Moses Cheever now lives, and which was conveyed by Benjamin Melvin and Joanna Melvin to Dr.

Jacob Kittridge, by deed dated the 25th day of April 1782.” In some of the deeds, the expression is, “ the estate called the Cheever farm ” : In others, it is described as “a tract of land on which the said Moses Cheever now lives ” : And in all, the deed of Melvin to Kittridge is referred to as a further description of the premises intended to be conveyed. When these conveyances to Cheever were made, he was in the open and exclusive possession of the demanded premises ; so that, according to the verdict of the jury, the two descriptions do not agree.

And the question is, which of them is to be considered, according to the rules of law, as the true description, by which we are to ascertain the estate intended to be conveyed. One of the rules of construction, which has some bearing on the present question, is, that where there is a doubt as to the construction of a deed poll, it shall be taken most favorably for the grantee. If, therefore, there be two descriptions of the land conveyed, which do not coincide, the grantee is entitled to hold by that which will be most beneficial to him.

It must, however, be a case of real doubt; for if one of the descriptions be more certain than the other, the more certain description must govern, although the construction may be less favorable to the grantee. For it is another well known rule in the construction of deeds and other instruments, that if some of the particulars of the description of the estate conveyed do not agree, those which are uncertain, and liable to errors and mistakes, must be governed by those which are more certain.

Thus the boundaries of lands by known1 monuments are always / to control the description by courses and distances; and so 1 courses and distances will control the quantity of land expressÍed. Another rule of construction is, that if the description be sufficient to ascertain the estate intended to be conveyed, it will pass, although some particular circumstance be added inconsis- , tent with the description. But if the description be general, i and a more particular description be added, it will operate by way of restriction. 5 East, 51. 4 Mass. 205.

By the appli- ■ cation of these well established rules to the present case, we think we may ascertain, with reasonable certainty, the estate intended to be conveyed by the deeds to Cheever. Several of the cases cited by the counsel seem to be directly in point, but they are not all easily to be reconciled. I will first refer to those cases which seem to support the construction contended for by the counsel for the tenants. In Worthington v.

Hylyer, 4 Mass. 196, the words of description are “ all that ■ my farm of land in said Washington, on which I now dwell, ;i being lot No. 17 in the first division.” The land demanded in that action was not included in lot No. 17, yet the court held that it passed — the first description being sufficient to ascertain the estate intended to be conveyed — and that the additional description, being inconsistent with the former, was to be rejected ; because, if it were to be considered as an essential part of the description, the deed would be void for repugnancy. In Cate v.

Thayer, 3 Greenl. 71, the question was as to one of / the lines of the town of Dresden, which was described as a 1 course “ north-northeast including the whole of Gardiner’s farm; ” ; and the court held that the whole farm was included, although intersected by a line running north-northeast; because the farm was to be considered as a monument. In Keith v. Reynolds, 3 Greenl. 393, the description was, “ a certain tract of land or farm, in Winslow, included in the tract which was granted to Ez.

Pattee,” and afterwards there was added a particular description by courses and distances, which did not include the whole farm. It was contended that the particular description should prevail, in preference to the other which wav more gen-, eral and uncertain; but it was decided that the first description was certain enough, and that it was to be adopted rather than the description by courses and distances, which was more liable to errors and mistakes. In Lodge v.

Lee, 6 Cranch, 237, the description was, “ all that tract or upper island of land, called' Eden ; ” and then it was added, “beginning at a maple tree,” and describing the land conveyed, by bounds, courses and distances ; but so as not to include all the island. The court held that the whole island passed. In Jackson v. Barringer, 15 Johns. 471, the grant was, “ the farm on which J. J. D. j now lives,” which was bounded on three sides, and “ to contain eighty acres in one piece.” The farm contained 149 acres ; , and the decision was, that the whole farm passed. In Swyft v. Eyres, Cro.

Car. 546, the land conveyed was described as “ all that the grantors’ glebe lands lying in Chesterton, viz. 78 acres of land, with all profits, tithes, &c.”; and then were added the words, “ all which lately were in the ferm or occupation of Margaret Peto.” It was found that the tithes of these glebe lands never were in the tenure of Margaret Peto, though other lands and tithes were. But it was held, notwithstanding, that the lands and tithes, first described, passed. In Eliot v.

Thatcher, 2 Met. 44, note, the land conveyed was thus described : “ All my real property or homestead, so called, lying and being in Dartmouth, together with about 30 acres of land, let the same be more or less, &c. ; for more particular boundaries reference may be had to a deed, given by Clark Ricketson to David Thatcher, of the above mentioned premises.” It appeared that the grantor was seized only of a part of the land which he bought of Ricketson, but he had bought some land adjoining thereto, being in the whole about 30 acres.

And it was decided that the whole passed ; it being held that the word “ homestead ” was a sufficiently certain description, and that the grant ought not to be limited and restrained by the subsequent reference to Ricketson’s deed ; it being a well known rule of construction of deeds, that a precedent particular de scription shall not be impaired by a subsequent general description or reference ; and that deeds are to be construed according to the intention of the parties ; and that if there be any doubt or repugnancy in the words, such construction is to be made as is most strong against the grantor, because he is presumed to have had a valuable consideration for what he parts with.

These cases certainly are strongly in favor of the construction of the deeds in question, which is contended for by the tenants’ counsel. But in the case of Barnard v. Martin, 5 N. Hamp. 536, and in Woodman v. Lane, 7 N. Hamp. 241, a different rule of construction was adopted. In the former case, the grant was “my homestead farm, it being the same land conveyed to me and J. M. by C. B.,” which did not in fact include the whole homestead farm ; and it was decided that the former description was controlled by the latter.

In the other case, the grant was, “ my homestead farm, and is the same land which was conveyed to me by the deeds of” [several persons named,] “ for a more particular description reference maybe had to said deeds ; ” and the same decision was had as in the former case. See 8 East, 103. Plowd. 191. The weight of authority, however, is we think clearly in favor of the former decisions.

In the present case, if the land had been conveyed by referance to known monuments and boundaries, it would be clear that the subsequent reference to the mortgage deed would not operate by way of restriction ; and we think there is no good reason why the description in these deeds—the boundaries of the farm conveyed being certain, and undoubtedly well known to the parties — should not be held equally conclusive. There are also several extraneous circumstances, which favor this construction.

In 1793, Kittridge made a lease of the premises to Melvin, in which they were particularly described by metes and bounds ; and the presumption is, that a survey had been taken after the mortgage deed had been given ; for the description of the premises in that deed is very general and loose. This lease, taken in connexion with the subsequent leases to Cheever, must be construed so as to include the demanded premises. The description is similar, except that the lease to Cheever, in 1803, bounds the premises on Tyler.

There is in this lease also a mistake in the length of one of the lines ; but taking the description all together it is sufficiently clear, and the mistake in the line is obvious from the monuments and abuttals referred to in the subsequent part of the description. Then it appears that after Melvin’s lease had expired, he was sued by Kittridge, who recovered judgment against him for possession, in 1796, and immediately took possession and leased the premises to Cheever and Thissell ; and that Cheever built a fence on the Tyler line, and occupied up to that line.

The description of the premises, in Kittridge’s writ, may not be sufficiently certain to be conclusive against Melvin; but there can be no doubt that the parties well understood what land was sued for in that writ. These facts raise a strong presumption that the mortgaged premises were located by the parties according to the tenants’ claim. Melvin acquiesced, never making any claim, until his death in 1830. And in the meantime he conveyed his lands to Tyler and others up to the line to which the tenants now claim. These circumstances must have been well known to the heirs of Dr.

Kittridge, when they conveyed to Cheever ; and if so, they certainly ought to have a controlling influence in ascertaining the intention of the parties to those conveyances. And the strong presumption is, that the heirs intended to convey and relinquish all their right and title to the Cheevei farm, however it might have been acquired. No other reasonable inference can be made from the language of the deeds and the facts proved. And this presumption is much strengthened j by the conduct of the parties since the conveyance.

The long ; acquiescence of the heirs in the possession of Cheever, and \ those to whom he conveyed the premises, taking into consideration their greatly increased value, is a strong circumstance to show that the parties supposed that the whole farm had been conveyed. Upon the whole, therefore, we can have no doubt as to the intention of the parties ; and we think there is no technical rule of law, as to the construction of deeds, that should deprive the grantee of any part of the land intended to be conveyed, and for which, it must be presumed, he paid a valuable consideration.

We have no doubt that the parties believed, and had good reason to believe, that all the Cheever farm, as it was called, was included in' the mortgage deed ; but if it was not, the mistake is not to prejudice the grantee, in favor of the grantors. We are therefore of opinion, upon the whole matter, that all the title of the heirs of Dr. Kittridge to the Cheever farm passed by their conveyances, whether it was derived from the mortgage deed, or was acquired by disseizin.

But supposing we should adopt the construction contended for by the demandant’s counsel, still the question would remain, whether the tenants have not made out a good title. Admitting this construction, the objection is, that the heirs of Melvin, who entered on the premises in 1832, had a good right of entry, because Cheever’s possession, after the death of Dr. Kittridge, was less than 20 years; and this is unquestionably so, unless the possession of Kittridge and Cheever were so connected as to have kept up a continuous disseizin.

For it is a principle well established, that where several persons enter on land in succession, the several- possessions cannot be tacked, so as to make a continuity of possession, unless there is a privity of estate, or the several titles are connected. Whenever one quits the possession, the seizin of the true owner is restored, and an entry afterwards by another, wrongfully, constitutes a new disseizin ; as was decided in Potts v. Gilbert, 3 Wash. C. C. 475. And the same principle is laid down in Ward v. Bartholomew, 6 Pick. 415; in Brandt v. Ogden, 1 Johns. 158; in Doe v. Campbell, 10 Johns. 475; in Jackson v.

Leonard, 9 Cow. 653; and in Allen v. Holton, 20 Pick. 465. But in the latter case it was decided, that where one of two disseizors, in possession as tenants in common, abandons the land, the abandonment does not enure to the benefit of the disseizee, but the cotenant holds the land against the disseizee, in the same manner as if he had been from the beginning a sole disseizor.

No conveyance of the moiety held by the other disseizor is necessary, and the disseizee cannot regain his seizin, except by entry or action ; for he cannot hold jointly, or in common, with the disseizor.- The same principle seems to be applicable to the present case. While Cheever’s lease conr tinned in force, there was a privity of estate between him and Dr. Kittridge, his lessor ; and so there was between him and the heirs of Kittridge, after his death, if he occupied with their consent, as a tenant at will.

It is said, however, that there is no privity of estate between the owner of land and a tenant at sufferance. But whether Cheever was a tenant at sufferance, or tenant at will, there was such a connexion of title between him and Kittridge and his heirs, as would be sufficient to preserve the continuity of the disseizin.

The next objection to the tenants’ title is, that Kittridge entered by mistake as to the boundaries of the mortgage deed, and that such an entry would not constitute a disseizin ; or if it would, that as the tenants relied on the mortgage, as one ground of their title, they are estopped to set up a title by disseizin. We think there is no good ground for this objection, in either branch of it.

As to the supposed mistake, the demandant cannot now set up the objection ; for by the report it appears, that his counsel admitted that thirty years of adverse possession had been proved ; and adverse possession, without right, constitutes a disseizin, provided the possession be notorious and exclusive. But if there had been no such admission, there is nothing in the case reported to support the objection. For Kittridge entered•' in 1796, under his judgment.

He entered, therefore, under a title hostile to that of Melvin ; and if his title was not good, the entry and expulsion of Melvin clearly constituted a disseizin. If one enters under a void grant, he is a disseizor. ; The only other question which remains to be decided is, whether the right of Mrs. Melvin, the mother of the demandant, has been barred. The argument is, that if the demanded premises were included in the judgment which Kittridge recovered against Melvin, neither he nor his wife had any right to enter ; and therefore their neglecting to enter would not bar her right.

To this' argument there are several objections. In the first place, the premises are not described with sufficient certainty to bar Melvin’s title, if he had a good title to a part of the premises before the judgment. To make the judgment conclusive, as to the extent of the land recovered, it must be described, in the writ or judgment, with great certainty ; otherwise the sheriff cannot know of what land he is to deliver possession on the writ of habere facias possessionem. And if he delivers more than is described in such writ, an action upon the case will lie against him.

It is important, therefore, that the land should be described with great accuracy and certainty. The sheriff is not to be called upon to give a construction to a vague or inconsistent description. This is within the province of the court alone to'determine. A description of land, though inconsistent in some respects, may be sufficiently certain to pass the estate intended to be conveyed, but not sufficiently certain to be a good foundation for a conclusive judgment.

The grant of all a man’s lands in a town, county or state, would be sufficiently certain to pass a title to his lands; but such a description would not be sufficient in a writ of habere facias possessionem. But supposing Melvin’s right of entry was barred by the judgment, it does not follow that his wife could not enter to prevent her right from being barred by the statute of limitations. An estate in remainder or reversion may be taken in execution, and the officer may enter for the purpose of delivering seizin to ‘lie judgment creditor, without being a trespasser upon the tenant of the particular estate.

And for a like reason, the wife of Melvin, he not objecting, might make a formal entry on the land, (though he could not,) for the purpose of preventing the statute bar. And lastly, another and a decisive answer to the argument of the counsel for the demandant is, that the statute of limitations is express and clear, that when a right of entry into any lands, tenements or hereditaments, accrues to a feme covert, her right of entry is barred, unless she enters within thirty years from the time her right of entry first accrued ; as was decided between these same parties, in 16 Pick. 161.

This may have been an unwise law, and it has been since altered by the Rev Sts. c. 119, § 5. But the language of St. 1786, c. 13, is clear, and must govern the present case. We think it has been clearly proved, that Mrs. Melvin was disseized as early as 1796, and neither she nor her heirs ever entered before 1832. They had then no right of entry, and have never been lawfully seized. We are therefore of opinion that the tenants have made out a good title to the whole premises, on the grounds stated, and are entitled to judgment.