Call v. Buttrick , 58 Mass. 345 ( 1849 )

Metcalf, J.

The state of the plaintiff’s title to the well and to the use of the water in it, when he commenced his action, is shortly this: Sidney Spaulding and others owned the land on the 28th of May, 1832, and then conveyed it to Peter E. Sanborn, who, at the same time, mortgaged it back to them. On the 2d of June following, Sanborn gave a quitclaim deed of that part of the mortgaged land, in which the well is, to Avery Marshall, who, together with Luther Marshall, on the 28th of July, 1835, made a sealed lease to the plaintiff and Solomon Phelps, and their assigns, of the right and privilege, of digging a well in the land, and of conducting the water thereof to their houses on Pawtucket canal. About the same time, (as we understand,) Spaulding, w ho Had become assignee of his co-mortgagees, undertook to confirm the lease aforesaid, by an instrument signed and sealed by him, but not acknowledged until after this action was brought ;■ and on the 5th of May, 1836, he made a quitclaim deed to Luther, Avery and Hezekiah Marshall, of the lot of land in which the well was, and covenanted against all claims that any persons might make to the quitclaimed premises through or under him or his heirs. On the 20th of May, 1847, (two days before this action was brought,)' Avery Marshall conveyed to the plaintiff all said Avery’s right and ' fitle to the land aforesaid. The plaintiff, as* early as the year 1840, became the sole owner of Solomon Phelps’s house and estate on Pawtucket canal, (to which the aforesaid lease gave liberty to convey water from the well,) with all the privileges and appurtenances belonging thereto. The olaintiff and his tenants also had the uninterrupted use of the well and the water in it, from the year 1835 until near the time when this action was commenced. And it does not appear that the defendant, before this action was commenced, had any title or claim to the land.

Upon examining these facts and conveyances, we are of opinion, that the plaintiff had a sufficient title to the well, when this action was commenced. He had a lease and grant from Sanborn, who had previously mortgaged the land, and a confirmation of that lease and grant, by Spaulding, the holder of the mortgage; thus acquiring a title from the only parties who appear to have had any power to confer title.

It was objected, that this deed of confirmation by Spaulding was invalid, because it was not acknowledged by him before this action was brought. . But, as against Spaulding, and his heirs and devisees, it conveyed a title, although it was not acknowledged. Dole v. Thurlow, 12 Met. 157.

If, however, this deed of confirmation were not valid, there is another ground upon which we are of opinion that the plaintiff’s title, at the commencement of his action, was sufficient. Spaulding conveyed and released the land to the three Marshalls, and Avery Marshall afterwards conveyed all his right and title to the plaintiff. It does not appear whether Spaulding had an indefeasible title, when he conveyed to the Marshalls. That conveyance was four days before the expiration of three years from the time of Spaulding’s entry for foreclosure. The mortgage, therefore, was not then foreclosed. And whether he had obtained a release of Sanborn’s equity of redemption, we do not learn from 'the report of the evidence. Nor is it material. For as Sanborn had granted to the plaintiff the right to dig and use the well, neither he nor his heirs or assigns could have defeated that grant, even if the mortgage had ’ been redeemed after Spaulding’s conveyance to the Marshalls. And if Spaulding, after that conveyance, foreclosed the mortgage, the foreclosure enured to the benefit of the Marshalls and their assigns.

It was contended for the defendant, that if the plaintiff’s title was derived solely from Avery Marshall’s conveyance to him, this action must fail, because Luther and Hezekiah Marshall should have joined as plaintiffs; and that if the plaintiff’s title was sufficient under Sanborn’s conveyance, and Spaulding’s confirmation thereof, then Solomon Phelps should have joined in bringing this action. But if it were certain that the plaintiff is tenant in common of the well, the nonjoinder of his co-tenants could be excepted to only by plea in abatement, though he would be entitled to recover damages only pro interesse suo. 1 Saund. 291, g, h. Addison v. Overend, 6 T. R. 770. Whether the plaintiff has acquired Phelps’s right to the use of the well, is a question on which the evidence given at the trial does not enable us to form an opinion.

It was also objected against the maintenance of this action, that the plaintiff has filled up the defendant’s cesspool, since the commencement of the action; and it was urged, that an abatement of a nuisance by a plaintiff, after suit brought to recover damages for levying it, abates the suit, or is a bar to it. The authorities cited in support of this position relate to the processes of assize of nuisance, and quod permittat prosternen. And in those processes, while they were in use in England, the law was so. But it is otherwise in actions on the case to recover damages for a nuisance. Kendrick v. Bartland, 2 Mod. 253, and 1 Freem. 230; Pierce v. Dart, 7 Cow. 609; Gleason v. Gary, 4 Connect. 418; Tate v. Parrish, 7 T. B. Monr. 327.

Without considering the effect of the deeds which bear date since this action was brought, we are satisfied that the other deeds show such a title as authorized the plaintiff to bring the action. The nonsuit is, therefore, to be taken off and the case is to stand for trial.