Fitzgerald v. Libby

• Decision Date: 02 July 1886
• Citation: 7 N.E. 917,142 Mass. 235
• Parties: FITZGERALD v. LIBBY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

142 Mass. 235

7 N.E. 917

FITZGERALD v. LIBBY.

Supreme Judicial Court of Massachusetts, Middlesex.

July 2, 1886

COUNSEL

John J. Hogan and A.G. Lamson, for plaintiff.

F.W Qua, for defendant.

OPINION

C ALLEN, J.

The only question is whether, by the true construction of the mortgage, lots 288 and 289 are to be deemed to have been included in the description of the land conveyed thereby.If they are, the plaintiff cannot recover.If they are not, his exceptions must be sustained.In determining this question we must look at the whole of the mortgage in the light of the circumstances under which it was given.It embraces four different parcels, or clusters of parcels, of land.In respect to the first three of these there is, in each case, a description of land, or a reference to deeds, which are designated, sufficient to enable one to to ascertain the boundaries of a larger quantity of land originally owned by the grantor, from which he had conveyed certain portions or lots to former purchasers; that is to say, the grantor, having bought, in each case, a large lot of land, and having sold portions thereof, then granted the residue by a mortgage in effect describing the whole of the large lot, and excepting therefrom such portions as he had already conveyed.By a somewhat cumbersome process, any one familiar with the premises would ascertain precisely what was intended to be included in the mortgage.

In respect to the fourth parcel, however, the phraseology was changed, and the language of the conveyance is as follows:

"Also all the land by me owned and situate in my New City, so called, in said Lowell, being land situate in said Lowell, westerly of Boston & Lowell Railroad, and northerly of the Chelmsford road, so called.For boundaries and description reference is made to deeds to me, recorded in said registry."

No deeds are specifically designated, and there is no exception of lots already conveyed by him.In point of fact it appears that there was a large tract of land in Lowell, formerly belonging to Ayer, the grantor, and known as "Ayer's New City," which was the same "New City" mentioned in the mortgage, and the lots 288 and 289 were a part of said New City, and were shown on a plan of the whole tract, and had been sold by the grantor, prior to the giving of the mortgage, by warranty deeds not then recorded.Whether or not other lots had also been sold by him does not appear in distinct terms.But it may be inferred that the large tract was either actually improved, or was designed to be improved, by laying it out into streets and lots for sale.The bill of exceptions is rather meager in its facts.But taking such facts and circumstances as we have, it seems to us that the change in the phraseology when the fourth parcel was to be described, shows that the intention was to include only such land as the grantor then owned.There is no specified description of land, and no specific designation of deeds where a description can be found.The conveyance is a mortgage, and not an absolute deed.The reference to the source of the grantor's title is of the most general description: "For boundaries and descriptions reference is made to deeds to me, recorded in said registry."This reference, while certainly entitled to some weight, is entitled to less than if it were more specific; and, in view of the whole instrument, it is not sufficient to lead to the conclusion that the grantor intended to convey all that...