Goyette v. Keenan , 196 Mass. 416 ( 1907 )

Sheldon, J.

1. The mortgage deed given by the defendants to the Springfield Five Cents Savings Bank in 1898 rightly was excluded. It had no material bearing upon the issue tried in this case. The plaintiff’s declaration and his whole case rested upon the claim that the defendants were not seised of the land in dispute, described in his deed as “ land formerly belonging to Henry Bliss, now or lately to one White,” and so that this land did not pass to him. It seems to have been agreed by both parties that this land was held by White at the time that the plaintiff took his deed; and the real question was whether the description in that deed included this piece of land. Manifestly the description contained in the mortgage deed given to' a third party five years earlier could throw no light upon this question.

2. The exclusion of the statements made by George A. White, offered “ to show the character of his occupation of this tract in dispute, in connection with his acts of occupation,” appears at first sight to present a more difficult question. Gray v. Kelley, 190 Mass. 184. Holmes v. Turners’ Falls Co. 150 Mass. 535, 547, 549. Flagg v. Mason, 141 Mass. 64. Niles v. Patch, 13 Gray, 254. But White was not deceased, and his declarations could not have been admitted under R. L. c. 175, § 66. Nor was there any offer to show that these declarations were made upon the land in question, and they were not admissible upon that ground. Long v. Colton, 116 Mass. 414, 415, and cases there cited. And see further, O'Connell v. Cox, 179 Mass. 250; Peck v. Clark, 142 Mass. 436. But the decisive reason against sustaining this exception is that there is nothing to show what the declarations offered were, and so it is impossible to say that the plaintiff was aggrieved by their exclusion. Commonwealth v. Smith, 163 Mass. 411, 429. Koplan v. Boston Gas Light Co. 177 Mass. 15, 25. Robinson v. Old Colony Street Railway, 189 Mass. 594, 597. It does not substantially appear, as it did in the case last cited, what answer was expected to the question which was excluded.

3. The ruling that the boundary in the plaintiff’s deed, “ on land formerly belonging to Bliss, now or lately to one White,” gave a monument which would control the distance stated in the deed, plainly was correct. Percival v. Chase, 182 Mass. 371, 378, and cases there cited. But a verdict should not have been ordered for the defendant. The monument is stated, as in the other deeds, to be “ on land formerly belonging to Henry Bliss,” and the additional description of it as belonging “ now or lately to one White ” could scarcely be taken to change the identity of the monument. Moreover, in the deed of Daniel Shea to George A. White, which conveyed the land now in dispute, the courses given, as appears upon the plan used at the trial and produced before us, bring the westerly boundary of that tract upon land of James L. White. It may well be doubted whether the “ one White ” mentioned in the plaintiff’s deed must not be held as matter of law to be James L. White, and not George A. White. At any rate, the jury could so find; and by reason of this error the order must be,

Exceptions sustained..