Bessom v. Freto

Shaw, C. J.

Trespass quare clausum. The defendant justified under a claim of title, by a deed from Hannah Martin to himself, and from Rouudy to said Martin. In the deed from Roundy to Martin, the grantor, after describing the estate as having been conveyed to him by Philip Bessom and Betsey his wife, makes the following exception and reservation : “ Excepting and .reserving also to Betsey Bessom above named, that she may continue to live in the dwelling-house herein conveyed, during the term of her natural life, without paying any manner of rent therefor.” The defendant took his title subject to this exception and reservation. In his deed from Hannah Martin, the same reservation is made that is made in Roundy’s deed to her.

Now, though a party cannot show title in himself by a reservation in a deed between others, to which he is not a party, yet such reservation will prevent the reserved part from passing to the grantee, and constitute a good reservation to himself. So here, though the plaintiff could not directly claim title to herself, yet it was a good reservation to the grantor, Hannah Martin, for the life of this plaintiff; and if said Hannah did not interfere to defeat the plaintiff’s possession, but permitted her to occupy the house, she had a possession lawful and valid against all others, and might maintain trespass, if her right of possession was violated.

The principal difficulty lies in the uncertainty of the de* scription of the part reserved. But the court are of opinion that if the plaintiff, when the deed was made by Hannah Martin to the defendant, was in possession of that part of the house upon which the trespass is alleged to have been committed, the said Hannah was disseized pro tanto, and that part did not pass. This was a question of fact, and parol evidence was competent to prove her possession at that time. The court having rejected the evidence offered for this purpose, the verdict must be set aside, and a

New trial ordered.