Hooten v. Comerford , 152 Mass. 591 ( 1891 )

C. Allee, J.

The matter in dispute was to determine Mrs. Comerford’s east boundary line. The description in her deed was, “ bounded northerly by a contemplated street called Snell Street, easterly by land of the grantor, southerly by land of Israel Buffington, and westerly by land of the said Augustus Chace, the grantor.” It thus appears that her land was taken out of the middle of a large lot belonging to her grantor, with nothing in the deed to fix either her east or her west boundary line. The deed referred to no monuments by which the starting points from the street or from Buffington’s land could be ascertained. Under such circumstances, if bounds or monuments existed at the date of the deed which were agreed upon orally by the parties as showing the lines of the land conveyed, or were erected or fixed by the parties for that purpose soon afterwards, that is sufficient to fix the true boundaries and lines of the land conveyed. Oral evidence must necessarily be resorted to, or the deed will fail. Crafts v. Hibbard, 4 Met. 438, 452. Stone v. Clark, 1 Met. 378. Blaney v. Rice, 20 Pick. 62, 64. Kellogg v. Smith, 7 Cush. 375, 382. Dodd v. Witt, 139 Mass. 63, 66. Lovejoy v. Lovett, 124 Mass. 270. Miles v. Barrows, 122 Mass. 579, 581. Reed v. Proprietors of Locks & Canals, 8 How. 274, 290.

Mrs. Comerford, at the trial, introduced testimony tending to show that, at the time of the delivery of the deed to her, Chace, her grantor, pointed out to her four stakes, one in each comer, and told her that the land between said stakes was the land he conveyed to her; and that, by an arrangement between her and Chace, the land was enclosed by fences the following season, each building one half thereof. The building of the fence was competent as a piece of evidence The instructions to the jury were clearly expressed, and, if the facts were as contended for by Mrs. Comerford, Chace could not defeat her title by a later deed to somebody else, in which the measurement would overlap upon her land. Blaney v. Rice, 20 Pick. 62, 64.

.Exceptions overruled.