Wendall v. Fisher , 187 Mass. 81 ( 1904 )

Hammond, J.

By the granting and the habendum clause in the deed of Thacher to Goff, the land therein described was conveyed in fee. The clause “ except a right to pass and repass in the road leading from the barn to the swamp where we get mud by our putting up bars, with teams and otherwise ” first appears in the covenant against incumbrances.

This exception must be regarded therefore as inserted only for the purpose of modifying to that extent the liability upon the covenants. It did not estop the grantee from denying the existence of the right therein described as against any person asserting it. Weed Sewing Machine Co. v. Emerson, 115 Mass. 554. Much less was it a reservation or exception from the grant; and the principle upon which cases like White v. New York & New England Railroad, 156 Mass. 181, and Hamlin v. New York & New England Railroad, 160 Mass. 459, 461, rest is not applicable. It follows that the second and third of the defendant’s requests for instructions should have been given, and the instruction that the jury might consider the deed from Thacher to Goff as establishing a right of way which is still existing across the plaintiff’s land was erroneous.

No error is shown in the admission of the sealed agreement subsequently executed by Thacher to Goff, purporting to establish the boundaries of the way. Although unrecorded, it was binding upon subsequent holders under Goff with notice.

Exceptions sustained.