Merritt v. Morse

Ames, J.

In order to maintain his action, it was necessary for the plaintiff to show that he had been evicted by a superior title from the estate described in his deed, or that he had yielded to such superior title, and so had been deprived, in whole or in part, of the title or advantage which that deed purported to convey. The judgments which he offered in evidence are clearly competent for that purpose.

The judgment in the complaint under the mill act is decisive upon the point that he could not under that deed make out a full title, or any title, to the land which the two dams, described in that deed, would flow.

The judgment which was rendered against him, in a suit which he brought against Calvin Marshall for an alleged trespass upon the close described in the deed, was also admissible, on the ground that it was a suit in which his title to the same lot of land might have been and was put in issue. The record in that case shows that Marshall claimed soil and freehold in the close described, and also denied that he had committed any trespass. It does not appear what the paroi evidence was which was admitted in relation to that suit; but it is well settled that, under our system of pleading, paroi evidence is not only admissible, but is usually indispensable, to show what, of various points comprehended under a general plea, was really in controversy, and formed the ground of decision. Eastman v. Cooper, 15 Pick. 276. Sawyer v. Woodbury, 7 Gray, 499. Dutton v. Woodman, 9 Cush. 255. Burlen v. Shannon, 14 Gray, 433. Perkins v. Parker, 10 Allen, 22. In the absence of any specific objection to the paroi evidence received, we must assume that it was offered for a purpose for which it could properly have been admitted; that is, to show that this plaintiff’s title was directly put in issue, and that he failed in his suit for want of title to the soil and freehold.

In like manner, in regard to the judgment against this plain tiff upon his default, in an action in which he was charged with trespass upon the same land, it was competent to show, by paroi evidence, that he submitted to a default because he could not defend himself against a superior title in his adversary. Hamilton v. Cutts, 4 Mass. 349. Arnold v. Arnold, 17 Pick. 4. Stevens v. Taft, 8 Gray, 419.

The deed purports to be a conveyance of “ a certain water privilege, lot of land, and buildings thereon, situate in Easton, in the county of Bristol,” with a circumstantial and particular description. It then goes on to say, in a separate clause, “ also all the land which the said first mentioned dam will flow ; also all the land which the said second mentioned dam will flow; together with said dams; ” &c. We think the fact that the dams flow the water over land part of which is in the county of Plymouth does not limit the interpretation of the deed to land in the town of Easton. The expression “ situate in Easton ” may be considered as applicable exclusively to the estate included in the special description ; or it may be rejected as falsa demonstratio, if literally applicable to the general grant of “ all the land which the dams will flow.”

The auditor reported that the suits, wherein the judgments were had, asserted or defended the title to a part of the land described in the deed; and that Morse was duly notified of the pendency of two at least of these suits, and was requested, and agreed to take charge of them. At the second trial, therefore, which was before the judge without a jury, he was authorized to rule that the question of title was conclusively settled by these judgments, and also that the items allowed by the auditor were correct. Shears v. Dusenbury, 13 Gray, 292. Chamberlain v. Preble, 11 Allen, 370. Haven v. Grand Junction Railroad & Depot Co. 12 Allen, 337.

The exceptions taken at each trial are therefore

Overruled.