Grover v. Drummond , 25 Me. 185 ( 1845 )

On a later day at the same term the opinion of the Court was given orally by

TeNney J.

The Judge first stated the facts and read the descriptive part of the deed; and then remarked, that to aid in giving a construction to a deed, parol evidence might rightly be introduced, to show the location and actual appearance of the land at the time of the conveyance, but was inadmissible, to show the sayings or doings of the parties, or either of them for that purpose.

The levies of the executions were upon a specific portion of the twenty acres, before any location of the acre had been made, or attempted to be made by any one. And the levies were void, and could not affect the rights of either party.

It is said in argument, that the delay of more than four years in making a selection of the acre, shows such laches on the part of the demandant, as destroys any right he might have had to locate his acre. We are inclined to think, that an unreasonable delay on the part of the demandant in making the selection, would amount to a waiver of his right, and leave the parties to settle the controversy in the mode pointed out by law; but on this point we give no opinion.

The decision of this question must be based upon the construction to be given to the deed, on an inspection of the whole of it, with the aid of such facts as are legally before us. True it is, that a conveyance of the twenty acres of land with a pertinent description of the boundaries thereof, would carry the buildings with the land, although not named in the deed. Buildings, however, are not land, but pass as fixtures. That is not the inquiry here, but whether the demandant has a right so to locate his acre of land as to run out and include the buildings. The right given in the deed was to select “ a certain lot of land, situate on my home farm in Winslow,” containing in the whole twenty acres, “ to contain one acre, in such shape as the said Grover may choose,” “ said one acre is supposed to contain a ledge of limestone or marble.” The demandant claims the right so to make his selection, as to take in a ledge of limestone or marble, although not the principal one upon the premises, and from thence to run a narrow strip of land to connect the quarry with the buildings, standing at a considerable distance therefrom, and include the land, whereon they, stand, within the acre. Such could never have been the understanding of the parties. And we are of opinion, that the law gives the demandant no right to select “ the lot of land” in that manner. His title to the demanded premises, therefore fails.

Note by the Reporter. — At the June Term of this Court, 1840, Drum-mond presented a petition of which a copy follows : — “ To the Hon. the Justices of the Supreme Judicial Court. “ The said Drummond represents, that the aforesaid action against him was heard and finally determined at the June Term last of this Court, and judgment rendered in his favor for his costs; that for the trial of said action at Nisi Prius, he, by the advice of his counsel', summoned witnesses to prove facts which he was advised were material to his defence; that on opening the ease to the jury and on his offering to prove said facts by the witnesses summoned as aforesaid, it was ruled by the Court, that the facts so offered to be proved were inadmissible and the testimony was rejected; that in making up his costs lie taxed the travel and attendance for the witnesses, which were allowed by the clerk, but on an appeal from the decision of the clerk to the Judge presiding, at the October Term last past of this Court, the said Judge decided that the costs of said witnesses could not be allowed, “ because their testimony was not received, not being legal testimony.” He therefore prays the Court here, that the costs of said witnesses may be allowed to him.” After a hearing of the counsel for the parties, it was said by the Court, that although the witnesses were summoned to prove certain facts under the direction of counsel, yet if tile testimony they wouid llave given on the trial was illegal and inadmissible, and therefore rejected, the expense of their attendance should not be taxed in the bill of costs against the other party. The taxation of the travel and attendance of those witnesses was disallowed. Noyes, for Drummond. Moor, for Grover.

According to the agreement of the parties, the demandant must become nonsuit.