Buffum v. Hutchinson , 83 Mass. 58 ( 1861 )

Merrick, J.

This is a real action to recover possession of the tract of land described in the writ, being part of lot No. 6 in the third range which was laid out and assigned by the town of Lynn to Matthew Estes in 1706. The demandants derive their title by a regular series of conveyances from said Matthew Estes ; deducing their title, among other conveyances, from deeds from the heirs of John Ireson and from Amos Dorman. Their title in this manner being shown to be complete, they are entitled to recover unless the objections relied upon by the tenants are sufficient to prevent it.

It is first objected that the demandants are estopped from setting up their title under the conveyance from the heirs of John Ireson, by reason of the covenants contained in a certain deed of partition made and executed by them and certain other persons, proprietors of certain parts of the tract of land known as the “ Rocks Pasture.” This deed bears date and was executed on the 22d day of November A. D. 1813. By the terms of it, six acres and eighty poles in the sixth lot in the third range, on the eastern side of said lot, were set off and assigned to Jacob Ingalls. By the same deed, eight acres and one hundred poles were also set off and assigned to the heirs of John Ireson. Both of the lots thus assigned and set off to Jacob Ingalls and the heirs of John Ireson include the demanded premises. And the several proprietors, parties to the said deed, “ do for themselves, their heirs, executors and administrators covenant and grant to each other that he or they shall thenceforward peaceably and quietly have, hold, possess and enjoy the same ” lots set off and assigned to them severally in and by said leed, “ free from all right and claim whatsoever of them or either of them, or any person claiming from or under them, forever.” The tenants insist that as the six acres and eighty poles set off and assigned to Jacob Ingalls include the demanded premises, the demandants are estopped, by the covenants of the heirs of John Ireson, from claiming the same under deeds from them. But whatever may have been the right of Jacob Ingalls, derived under the deed of partition, the tenants do not show that they are entitled to the rights thereby acquired by him. The tenants are the heirs at law of Jesse Hutchinson, Jr., to whom the demanded premises were conveyed by the warranty deed of Sidney Ingalls. But it does not appear, nor is there anything in the facts reported to show, that there was any connection between him and Jacob Ingalls, or that the title of the latter, whatever it was, ever came to him. On the contrary, the demandants .hold under deeds from the heirs of John Ireson, to whom the same demanded premises were, by the deed of partition, in direct and explicit terms assigned and set off. As against all persons therefore, except Jacob Ingalls, they had a clear and complete title; and as Sidney Ingalls shows none derived from Jacob Ingalls, neither he, nor the tenants claiming under him, can insist upon an estoppel by force of the covenants in the deed of partition.

But the demandants, in tracing their title from Matthew Estes, hold under a deed from Amos Dorman, as one of the intermediate conveyances. And the tenants claim that they derive title from the deed of Dorman dated January 4 1847, written on the back of a deed of Sidney Ingalls to Jesse Hutchinson, Jr. of the same date. It does not appear from the facts reported whether this deed of Dorman was made before or after the conveyance by him of the demanded premises under which the demandants derive their title; if it was afterwards, it is very clear that Hutchinson could take nothing by it. But whether it was before or afterwards is immaterial to the present issue; because the deed which names no grantee, but which being written on the back of the deed to Jesse Hutchinson, Jr., it is contended must be construed to be a conveyance to him, contains no words of limitation, and therefore conveyed only a life-estate. The word “ heirs” is essential in a deed of conveyance to create an estate in fee; and if a man purchase lands to himself forever, or to him and his assigns forever, he takes only an estate for life. 4 Kent Com. 6. The grantee, Jesse Hutchinson, Jr., having deceased, the life-estate which he acquired by the deed of Dorman, if in fact he took anything by it, is at an end ; and the tenants therefore cannot avail themselves of the estate thus conveyed.

The tenants, however, further rely upon a deed of Dorman to Albourne Oliver, conveying a certain undivided part of the land in “ Rocks Pasture,” in which he excepts, among other lots, “ about two thirds of the sixth lot in the third range of said ‘ Rocks Pasture,’ sold to Jesse Hutchinson.” This exception has some tendency to show that he had made a conveyance of some estate to Hutchinson; but as the only conveyance of that kind shown to have been made by him is by deed, and written on the back of the deed of Sidney Ingalls, and as that was the conveyance only of a life-estate, which has been terminated by the death of the grantee, the tenants obviously can derive no advantage from it.

It follows from these considerations that the exceptions to the rulings of the presiding judge cannot be sustained, and that the verdict for the demandants is to stand, and judgment is to be entered upon it. Exceptions overruled.