Lord v. Lord , 12 Me. 88 ( 1835 )

Parris J.

It may well be doubted whether by the deed of the 5th of February, 1817, from Samuel Lord to James Lord, the latter took any thing more in the dwellinghouse than a personal privilege of occupancy, not assignable or transferable in any manner, so that a stranger might by possibility come into the possession. The conveyance is from father to son of one hundred and thirty-two acres of land in fee, followed by this additional clause: “ And also, that the said James shall have the privilege of the eastern part of the dwellinghouse, one lower room, bed room and cellar and chamber, and one fourth part of the barn, so long as .they shall stand, to his' use.” The dwellinghouse and barn werejnot situated on the lot conveyed in fee, but on the homestead still remaining in the possession of the grantor.

Considering the circumstances under which the conveyance was made, the affinity of the parties, that the grant was from father to son, and the privilege to be enjoyed by the latter was in the dwellinghouse.jof his father, we should not think it a constrained’construction to say, that the privilege mentioned in the latter clause of the descriptive part of the deed, was available only to James, and could not by him be assigned so as to be operative in favor of a stranger. Under such a construction, we should find no difficulty arising from the habendum part of the deed. That would apply to “ the aforegranted and bargained premises,” the one hundred and thirty-two acres conveyed in fee, and it was evidently intended so to apply. Neither does the release of Samuel, on the back of his deed to James, have any more extensive operation. By a reservation in that deed, Samuel, the grantor, had a right to the use and improvement of the property conveyed, during liis life, and by the release be relinquishes that right to James, the grantee. This was probably intended to apply only to the land conveyed, viz. the one hundred and thirty-two acres. But whether it was so restricted, or applied also to the privilegé in the house, the release from Samuel was not until the 28th of March, 1829, long after James’ quit claim deed to Lyman, so that Lyman could derive no advantage from any subsequent conveyance from Samuel to James. By a release, no right passed but the right which the releasor hath at the time of the release made. Co. Litt. sec. 446 ; McCracken v. Wright, 14 Johns. 194; Jackson v. Hubble, 1 Cowen, 613; Jackson v. Winslow, 9 Cowen, 13.

There might be sufficient reasons why the son would be accommodated by the father, most cheerfully, with the use of a part of his dwellinghouse, when the like accommodation afforded to a stranger would be an annoyance hardly to be endured. The situation and circumstances of the contracting parties may properly be considered in giving a construction to the instrument. Wood v. Barstow, 10 Pick. 368 ; Clinton v. Fly, 1 Fairf. 292.

But if the interest which James Lord took in the dwelling-house, under the deed from Samuel Lord, to him, was an assignable interest, as contended by the plaintiff, then it passed to the plaintiff on the 27th of June, 1826, by a release or quit claim deed to him from James Lord, of that date. It w'as an interest in the estate of 'which Samuel Lord held the fee. This interest or easement the plaintiff released to Samuel, his father, the owner of the estate, by deed on the 14th of March, 1829, and Samuel, in consideration thereof, on the same day, conveyed to the plaintiff, one hundred acres of land in fee.

We think it is manifest, from all the papers in the case, ,that the release of Lyman Lord, before mentioned, was intended .to discharge the estate from this incumbrance. It is said that such could not have been the understanding of the parties, because Samuel Lord was not at the time owner of the fee, having previously conveyed to Hill. For what purpose the deed to Hill, the son in law of Samuel Lord, of the 11)th of October, 1828, was made, is very questionable ; — but certain it is, that Samuel Lord, the grantor, continued in possession, and subsequently exercised the same ownership over the property as he had before, and on the 14th of March, 1829, when he received the release discharging the easement, conveyed to Lyman, in consideration thereof, a lot of land, which was included in the previous deed to Hill, and which conveyance Hill likewise confirmed to Lyman by deed, on the 28th of the same month. Lyman Lord, by taking a deed from his father, treated the estate as belonging to the latter, as distinctly after the conveyance to Hill, as before; — Samuel, the grantor, by all his acts, treated Hill’s deed as a nullity, and Hill himself claimed no right under it, but conveyed to Lyman and Aaron, in accordance with their agreement with Samuel.

The parties then, in making use of the language in Lyman’s release to Samuel, “ all right, title and interest in the estate of Samuel Lord,” must have referred to this easement or privilege in the house, for Lyman then had no other right or title or interest in Samuel Lord’s estate, and it is not pretended that Samuel had any other real estate, except that described in the deed to Hill, of which the house constituted a part. It follows, therefore, that the plaintiff has no cause of action, and the non-suit is confirmed.