Todd v. Lunt , 148 Mass. 322 ( 1889 )

Field, J.

This case has been argued by the defendant only, and we are not certain that we understand the exceptions.

The exceptions recite that, in the tax deed, the premises “ were not accurately described, as to the boundaries and area thereof, so that the said premises as described could be found.” The description is as follows: “ The whole of the following described real estate, the same being the land taxed as aforesaid, to wit, about four and one half acres of salt marsh at Plum Island, bounded westerly on the river, northerly on a creek, easterly on marsh occupied by John Rogers.” This deed does not refer to the land as the Pollard lot, although it recites that the tax was assessed to “ Frank D. Pollard, non-resident, as owner of the real estate in said Rowley which is hereinafter described.” The boundaries of the Pollard lot on which the plaintiff entered are described in the exceptions “ as being northerly by a creek, easterly by land of the late Little, southerly by land of the late Bailey, and westerly by land of Widow Coffin, and containing about six acres.” Apparently the Pollard lot was a well-known parcel of land.

The deed to the defendant from Isaac H. Pollard and others, describes the lot as follows: “ Commencing at the northeast corner at marsh of heirs of Edward Little, thence easterly by said Little’s land to marsh of heirs of Bailey, thence southerly by said Bailey’s land to marsh of Coffin, thence westerly by said Coffin’s marsh to creek, thence northerly by creek to bound begun at, containing five acres, more or less, meaning to convey by this deed the lot of salt marsh known as the Pollard lot,” etc.

We think that the tax deed is void for uncertainty in the description of the land conveyed, and it is unnecessary to consider other objections to the plaintiff’s title. Hill v. Mowry, 6 Gray, 551.

The defendant claims title to an undivided part of the land under said deed from Isaac H. Pollard and others. Isaac H. Pollard was one of the heirs of John Pollard, who died intestate in 1847, and who received his title from Johnson Tenney by warranty deed, dated June 1, 1829. The heirs of John Pollard entered upon the land after his death. No defect in the defendant’s title has been shown us. Even if we assume that the possession acquired by the plaintiff was sufficient to enable him to maintain trespass against a stranger who had no title, he could not maintain trespass against the owner of the land, as he had not acquired title by disseisin. The defendant, as tenant in common with others, has the same right of possession against the plaintiff that a sole tenant would have.

Exceptions sustained.