Young v. Gregory , 46 Me. 475 ( 1859 )

The opinion of the Court was drawn up by

Tenney, C. J.

A parcel of land is described in the petition, which, it is agreed by the parties, is the easterly half of lot No. 3, shore range, by Eales’ survey, in the town of Camden. It is alleged that the petitioner is seized in fee of an-undivided half of the same in common, and prays judgment for partition thereof. Robert Gregory, the respondent, pleads that he is sole seized of all the land described in the petition, excepting a small parcel on the end thereof furthest from the shore, of which he alleges that one Hanson Gregory is sole seized and holds the same in severalty. Hanson Gregory, who was admitted to defend, alleges the same facts stated in the plea of Robert Gregory.

The petitioner introduced deeds, under which he claimed title to the premises; and also the record of divorce of Milla Gregory from the bonds of matrimony with her former husband, William Gregory, jr., in the year 1809, the assignment of dower to her afterwards, and her subsequent death. He contended that the land assigned as dower to Milla Gregory was identical with that described in his petition; and he introduced parol evidence that it was so, which, being objected to by the respondent, was excluded.

The case was taken from the jury, and, from the evidence reported, the whole Court are to decide the case as follows : — If it does not appear, from the evidence in the case, that the easterly half of said lot No. 3, is the portion set off as dower to Milla Gregory, and that the evidence offered by the petitioner, and excluded by the Judge, was properly excluded, the petitioner is to become nonsuit; otherwise the case is to stand for trial.

On April 6, 1814, William Spear, Archibald G. Coombs, Curtis Tolman and John Gregory executed an instrument under their several hands and seals, and, after stating therein that Milla Gregory, formerly the wife of William Gregory, jr., obtained a divorce from him, and has made demand of her right of dower in lot No. 4, in the shore range, and also the undivided half part of lot No. 3, in the same range, by Dales’ survey, containing one hundred acres each; — they further state, “ therefore we, the said Spear, Tolman, Coombs and Gregory, and Job Ingraham, the attorney of Milla Gregory, have appointed Ephraim Gay, Robert Jameson and Elkanah Spear, to set off and make a division of said real estate, to said Milla Gregory, as her right of dower in said estate.”

On the same day, the said Gay, Jameson and Elkanah Spear, made their return, that they met on the premises, and made the following division to the best of their judgment, viz.; — That Mrs. Milla Gregory shall have fifty and á third acres of land off of the south-westerly side of said lots, running parallel lines, &c.

It is not disputed that, by the terms used by the persons who set off the land as dower, it is very clear what part of the two lots was set off; but it is contended, by the petitioner, that the land actually assigned was the easterly half of lot No. 3.

It is very manifest by a comparison of the description of the land in this assignment, and in the petition, that they are not identical. The land set off is the western part instead of the eastern part of No. ^3. The language is unequivocal, and free from ambiguity. It does not appear that any part of the land assigned was on the eastern half of lot No. 3.

The parol evidence offered tended to contradict and qualify the language of the return, and was inadmissible.

According to the agreement of the parties, the petitioner must become Nonsuit.

Appleton, Cutting, Davis and Kent, J. J., concurred.