Barrett v. Murphy
| Decision Date | 22 October 1885 |
| Citation | 140 Mass. 133,2 N.E. 833 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | John Barrett & another v. Mary Murphy |
Writ of entry to recover a parcel of land on Furnace Street, in North Adams, being that marked by the letters A, B, C, and D, on the plan printed in the margin. [*] Plea, nul disseisin. Trial in the Superior Court, before Rockwell, J., who allowed a bill of exceptions, in substance as follows:
It appeared that Benjamin F. Robinson had conveyed nine adjoining lots situated on the west side of Furnace Street to different persons, and, among others, to the demandants, and to the tenant's grantors. The demandants put in evidence all the deeds of these nine lots, in chronological order, against the objection of the tenant. By the description in the deeds, it appeared that the first lot conveyed was the extreme northern one, which began at an elm tree, (which tree as a monument was fixed and certain,) thence by a line running south on said Furnace Street (the boundaries of which were not in dispute) four rods, and thence by courses and distances to the place of beginning. The lot next conveyed was the one next south, and began at the southeast corner of the lot first conveyed, and ran south on Furnace Street four rods, to a contemplated street two rods wide. The third lot conveyed began at the southeast corner of said contemplated street and Furnace Street, and ran south on the latter street four rods, and thence by courses and distances to the place of beginning. The description in the remaining deeds, down to and including the deed of the O'Hearn lot, dated November 15, 1875, and referred to as a boundary in the tenant's deed, each began at the southeast corner of the lot next north, and ran south four rods on said Furnace Street, and thence by courses and distances to the place of beginning.
The demandants introduced these deeds to fix the southeast corner of the O'Hearn lot, referred to in the tenant's deed, and contended that the southeast corner of that lot became certain by measuring south on Furnace Street from said elm tree thirty rods, the combined distance on Furnace Street of the lots and the width of said contemplated street, as appears by the description in the deeds and by Brown's plan hereafter referred to.
The demandants put in the evidence of F. S. Smith, a civil engineer, and a plan made by him, to fix the southeast corner of the O'Hearn lot at a point thirty rods from said elm tree. On cross-examination, Smith testified, against the demandants' objection, that certain modern fences now on said lots corresponded with the southeast corner of the tenant's lot as claimed by her, and not according to the plan and survey he had made, starting from said elm tree. The only monuments referred to in these deeds were the contemplated street, the elm tree, and the southeast corners of the lots.
The demandants then introduced the deed of Benjamin F. Robinson to William Harrington of the extreme southern lot conveyed, dated March 16, 1874, which contained the following description: "Commencing at the southeast corner of land I sold H. E. Bailey, thence southerly on the old Notch Road four rods; thence westerly eight rods; thence northerly four rods, to land I sold Bailey; thence easterly on Bailey's land to place of beginning." Also the deed of said Robinson to Richard and Eliza Murphy, dated April 26, 1879, containing the following description: "Beginning at the northeast corner of land of William Harrington, thence northerly on the road four rods, to land of E. O'Hearn; thence westerly eleven and a half rods on said O'Hearn's line; thence southerly four rods, to land of William Harrington; thence easterly on said William Harrington's north line nine rods and three links, to the place of beginning." After the conveyance to Richard and Eliza Murphy, Harrington reconveyed to said Robinson the lot which Robinson had previously conveyed to him.
The demandants then put in evidence their deed from said Robinson, dated February 14, 1881, containing the following description: "Commencing at the southeast corner of land of Richard and Eliza Murphy, thence southerly on the Notch Road four rods; thence westerly eight rods; thence northerly four rods, to land of Richard and Eliza Murphy; thence easterly on land of Richard and Eliza Murphy, to place of beginning." Also the deed of S. Proctor Thayer to the tenant, dated March 8, 1884, containing the following description: "Beginning at the northeast corner of land of John Barrett and wife, thence northerly on the road four rods, to land of E. O'Hearn; thence westerly eleven and a half rods on said O'Hearn's land; thence southerly four rods, to land of said Barrett and wife; thence easterly on said Barrett and wife's north line nine rods and three links, to the place of beginning."
The demandants offered to prove that if there ever was a conveyance from Robinson of the land next north of the Harrington lot to H. E. Bailey, such conveyance had never been recorded; which fact was admitted by the tenant.
The demandants contended that the northeast corner of the Harrington lot and the southeast corner of the Murphy lot was identical with the northeast corner of the Barrett lot and the southeast corner of the tenant's lot, and that both corners were at one and the same place, and both dependent on the southeast corner of the Bailey lot, and therefore uncertain, because there was no way of ascertaining the true southeast corner of the Bailey lot, in the absence of any knowledge as to what land was sold to Bailey; and that, as said southeast corner was in doubt, the only way to fix the northeast corner of the demandants' lot and the southeast corner of the tenant's lot was to measure back south on Furnace Street four rods from O'Hearn's line, referred to in the tenant's deed as a boundary which was fixed and certain, and there to fix a point as the boundary between the lots of the demandants and the tenant.
The tenant contended that the southeast corner of the Bailey lot was not in doubt, and that it was four rods north of the stone wall hereinafter referred to, and called William Harrington, who testified that at the time he took his deed from Robinson a stake was pointed out to him by the agent of the grantor, thereto specially authorized, as the northeast corner of his lot and the southeast corner of the Bailey lot, and that said stake was four rods from the stone wall and on the line of Furnace Street; and also put in the evidence of John C. Bailey, then occupying the third lot north of the Harrington lot, that, at the date of the Harrington deed, he knew of said stake being at the place testified to by Harrington. This evidence was admitted, against the objection of the demandants.
The tenant proved by Robinson, that he had given to H. E. Bailey a bond for a deed of the land lying next north of the Harrington lot, and that said bond was probably among his papers, but he could not tell until he had looked them over. The tenant offered no evidence as to the description in said bond, and the demandants were ignorant of it. The tenant then asked Robinson what was the southern boundary of the Harrington lot; and, against the objection of the demandants, the witness stated that it was the stone wall. The tenant then introduced a plan, not referred to in any of the deeds, made by F. P. Brown in 1872, and asked said Robinson if that was a plan of his lots. The demandants objected to the question and to the introduction of the plan, but the objection was overruled, and the witness stated that it was a plan of his lots. Against the objection of the demandants, the tenant then asked the witness which lot, as marked on Brown's plan, he sold by said bond to Bailey. The witness answered, "Lot No. 2 on the plan."
The tenant, against the demandants' objection, then put in the evidence of John C. Bailey and Daniel Manning, who occupied Lots 4 and 5, tending to show that a division fence was erected by them between said lots, in the place where a corner stake was pointed out to John C. Bailey by Robinson as the northeast corner of the John C. Bailey lot, on said street, and to correspond with it, at the time he went into the occupation thereof under a written agreement to purchase, and prior to the date of the O'Hearn deed, which fence would correspond with the division line between the demandants and the tenant as claimed by the tenant.
The tenant then called William Harrington, who testified, against the demandants' objection, that at the date of his deed March 16, 1874, and directly after the delivery thereof on the same day, he went with the agent of the grantor for that purpose, who pointed out to him a stake as the northeast corner of the Harrington lot and the southeast corner of the...
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