Almy v. Daniels

• Court: Rhode Island Supreme Court
• Writing for the Court: TILLINGHAST, J.
• Citation: Almy v. Daniels, 15 R.I. 312, 4 A. 753 (R.I. 1886)
• Decision Date: 13 May 1886
• Parties: ALMY and others, Ex'rs, v. DANIELS.

4 A. 753

15 R.I. 312

ALMY and others, Ex'rs,

v. DANIELS.

Supreme Court of Rhode Island.

May 13, 1886.

Defendant's petition for a new trial.

Joseph C. Ely and Herbery Almy, for plaintiffs.

Benjamin N. Lapham, for defendant.

TILLINGHAST, J. This is an action of account brought under the provisions of Pub. St. R. I. 236, (see Knowles v. Harris, 5 R. I. 402, for the construction of this statute, as distinguished from that of 4 Anne, c. 16, § 27,) by the executors of Humphrey Almy, deceased, against the defendant, who, it is alleged, was a tenant in common with the plaintiffs' testator in his life-time of a certain strip of land, 40 by 36 feet, lying on the southerly side of Custom-house street, in the city of Providence. The case was tried to a jury at the last October term of this court, resulting in a verdict for the plaintiffs for an account by direction of the court. The defendant now petitions for a new trial on the ground that certain rulings of the judge presiding at said trial, and particularly the one directing a verdict for the plaintiffs, were erroneous.

The first contention which the defendant makes is that the plaintiffs' testator had no title to the premises in question because he, in his life-time, by deed dated June 21, 1860, conveyed all his right, title, and interest therein to one Lewis P. Mead, which title, by sundry mesne conveyances, has come to him, and that he is now the sole owner of said premises. In order to prove their title, the plaintiffs, after introducing a number of deeds bearing thereon, offered the plat and papers in Almy v. Daniels, an equity suit between the same parties, respecting the same strip of land, tried and determined in this court in 1875, (see Almy v. Daniels, 11 R. I. 250,) together with portions of certain depositions taken and used in the trial of said cause to aid the court in the construction of said deed. The defendant's counsel consented to the offering of this testimony, but objected to its competency to explain the deed, and contended that it did not explain the deed. The plaintiffs contended, at the time of the offering of said evidence, that this deed from Almy to Mead had already been judicially construed by the court in the equity suit referred to, and that the question was therefore res adjudicata. The defendant contended, however, that the construction put upon said deed in said case was mere obiter dictum.

Upon a careful examination of that case, we find that the title of the plaintiffs' testator to the land in question was directly involved therein. The defendant then claimed precisely what he now claims, viz., that by this deed the plaintiff's testator "conveyed all his interest in the gangway or street to Mead which by sundry mesne conveyances has come to him." The bill asked "that the deed be construed to apply only to such interest in the street as was conveyed to the complainant by Bailey; or, if the court do not give such construction, to reform the deed, as it was a mistake which arose from the fact that the scrivener copied the language of Bailey's deed, not knowing that Almy had any other interest in the street than that mentioned in said deed." The opinion shows that the question as to the proper construction of said deed was "raised and fully argued in the case," and that thereupon the court decided that this strip of land is held by the complainant and defendant as tenants in common; and, although it was not strictly necessary for the court to pass upon this question, as the bill was dismissed on the ground that no contract was proved for a private way over the strip of land in dispute as alleged in the bill, yet, as the point was distinctly raised by the pleadings, fully argued by counsel, and thus deliberately passed upon by the court, we think the construction put upon the deed must be held to be res adjudicata. The dismissal of the bill, also, without reforming the deed as prayed, shows that the court must have found that it did not need reformation.

In Alexander v. Worthington, 5 Md. 471-489, the court say:

"All that is required to establish the authority of any decision is that the very point decided was actually before the mind of the court, and was investigated with care, and considered in its fullest extent."

When a question is presented by a bill in equity, urged and relied upon in the argument, and passed upon by the court in the opinion, it cannot with reason be said that the point was not involved, and the opinion of the court on the question is obiter dictum. People v. Wabash, St. L. & P. Ry. Co., 104 Ill. 476, 488. See, also, Wells, Res Adj. §§ 5, 582; Central Land Co. v. City of Providence, Index X. 76; S. C. 2 Atl. Rep. 553; 2 Smith, Lead. Cas. (7th Amer. Ed.) 648; Aurora City v. West, 7 Wall. 82; Perkins v. Walker, 19 Vt. 144.

Whether the evidence admitted as aforesaid to explain the deed, against the defendant's objection as to its competency for that purpose, was the basis upon which the justice presiding at said trial made his ruling as to the construction thereof, or whether it was upon the ground of the former decision, is not apparent from the record. Nor is it material; for, even admitting that the evidence offered was the basis of the ruling, still there is no occasion for defendant to complain thereof, as he has suffered no possible harm thereby. We think it would have been the duty of the court to rule as it did, without this evidence, upon being informed of the facts in the former case. The ruling complained of, therefore, was correct, irrespective of the ground upon which it was put.

We have also carefully examined and considered the evidence offered as bearing upon the construction of said deed, and are of the opinion that it fully supports the decision arrived at in Almy v. Daniels, supra. It frequently happens that, either by reason of some ambiguity in the language of a grant, or by the surroundings and appellations of the subject-matter thereof, it is not entirely clear what was intended to be included therein; and, in order to aid in the construction of deeds containing such infirmities, the law wisely permits the introduction of parol evidence. Neither is this any infringement of the well-known rule contended for by the defendant, that parol evidence is not admissible to contradict or vary the terms of a written agreement. On the contrary, it is for the express purpose of ascertaining precisely what was the intention of the parties, and of giving force and effect thereto. Furthermore, the fact that there is a repugnancy in the deed under consideration between the language first used and that which...