Henshaw v. Mullens , 121 Mass. 143 ( 1876 )

Endicott, J.

The parcel of land which the demandant seeks to recover lies on the boundary line between him and the tenant ; and the location of this line is the question in dispute. Makepeace and Bosworth owned the whole tract known as the Chadwick farm, as tenants in common, and conveyed to the tenant the western portion. Bosworth afterward conveyed his interest to Makepeace, who then conveyed the eastern portion to the demandant.

The deed of the tenant particularly describes the boundary line now separating the two portions. It begins at land of Talbot, and thence runs by courses and measurements in an irregular line “ to the end of a wall.” It appears by the demandant’s evidence that a stone wall stood on this portion of the boundary, from the land of Talbot to the end of the wall, as mentioned in the deed and marked upon the plan. From the end of the wall the line is described as running “thence northerly 70 rods to land of Flagg.” The deed of the demandant bounds the land conveyed to him on this side “ by land of Talbot to land of Ste phen Mullens, thence northerly on said Mullens to land of Flagg thence northerly on said Flagg to land,” &c. This deed bounds on land of Mullens as a monument, and the question in disputa must be determined by the construction to be given Mullens’s deed.

The tenant contends that the line from the end of the wall to land of Flagg is a straight line to the corner or near the corner of Flagg’s land, measuring seventy rods and eleven links. The demandant, on the other hand, says that it is an irregular line, seventy rods in length, following the courses of “ an old fence much decayed and fallen,” which appear upon the plan, and striking the land of Flagg about eleven rods from the comer of Flagg’s land. The demandant was allowed to introduce evidence of the acts and declarations of the tenant after he took his deed, to the effect that the line of the old fence was the true boundary, for the purpose of showing the construction put by him upon the deed.

But, upon examination of the language of the deed, we are of opinion that it is not of doubtful construction, and that paroi evidence of the acts and declarations of the tenant was incompetent. The deed carefully recites courses and distances along the stone wall, where the line is irregular, and from the end of the wall gives but one course to the land of Flagg. This must be taken to be a straight line, in the absence of anything to the contrary in the deed. Jenks v. Morgan, 6 Gray, 448. If the grantor had intended to describe an irregular line along the several courses of 'the decayed and fallen fence, the presumption is that he would have done so in the same manner as he described the other portion of the boundary, where the line was irregular. It is true that the straight line measures seventy rods and eleven links, while the irregular line is seventy rods in length, as called for in the deed. But this slight difference in the measurement of a line, in a deed of farming lands, when the whole line is between eleven and twelve hundred feet long, does not so far render the construction of the deed doubtful, that paroi evidence is necessary or competent to explain it.

Nor can we give the construction contended for by the demandant to the clause in the deed of the tenant, that he “ shall maintain the northerly half part of the fence ” between him and the land of the demandant. This evidently refers to the whole line, and not merely to the portion where the old fence is. The obligation applies quite as much to the maintenance of a fence on the straight as on the irregular line, and throws no light on the construction to be given to the deed.

The construction we give to this deed is confirmed by the boundaries set forth in the demandant’s deed. The line is there described, after it strikes the land of Mullens, as “ thence northerly on said Mullens to land of Flagg, thence northerly on said Flagg to land of Sibley.” This line runs in the same general direction against Mullens and Flagg, which accords- with the construction we give to the deed of Mullens. If the demand-ant’s construction is correct, his deed should give two courses, first easterly, then northerly on Flagg, as will appear by referring to the plan.

The evidence was therefore incompetent, and the instruction requested by the tenant should have been given.

Exceptions sustained.