Frost v. Angier

• Decision Date: 25 July 1879
• Citation: 127 Mass. 212
• Parties: William S. Frost v. Massillon W. Angier
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

127 Mass. 212

William S. Frost v. Massillon W. Angier

Supreme Court of Massachusetts

July 25, 1879

[Syllabus Material]

Suffolk. Contract for breach of the covenant against incumbrances in a deed of land from the defendant to the plaintiff.

At the trial in the Superior Court, before Allen J., the plaintiff put in evidence the deed of the defendant to him, dated May 17, 1876, which described the land conveyed as follows "One half part, undivided, of a certain tract of marsh land lying in Watertown, on the West Boston Bridge Road, so called, containing two acres more or less, deducting therefrom about nine fourteenths of an acre sold to one Merrifield, hereinafter more fully described, and before any deduction, being the same premises conveyed to Cephas Brackett by two deeds, one of them from John Coolidge, dated July 31, 1840, and recorded with Middlesex deeds, lib. 395 fol. 222, and the other from Daniel Learned, dated November 20, 1844, and recorded with Middlesex deeds, lib. 456, fol. 208." "The part to be deducted from the premises described in said deed is bounded north by Arsenal Street one hundred and sixty-one and one half feet, east by the land one undivided half part thereof is hereby conveyed two hundred and twenty-six feet, south by Charles River seventy-two feet, and west by land now or formerly of one Hoar two hundred and sixty-eight feet: containing twenty-eight thousand two hundred and fifty-five square feet, more or less, or about nine fourteenths of an acre."

The plaintiff also put in evidence the deed from Coolidge to Brackett, dated July 31, 1840, and the deed from Learned to Brackett, dated November 20, 1844.

The first deed described the land therein conveyed as follows: "A small piece of marsh land, situated in Watertown, lying on the southerly side of the turnpike road leading from Cambridgeport to Watertown, and bounded as follows, viz.: Beginning at a stake and stones at the northwesterly corner of said tract on said road, and running in a southerly direction, bounding on land of the trustees of the Ministerial Fund in Watertown and a ditch to Charles River, then turning and running in about a northeasterly direction on the said river to the bridge; then turning and running in about a westerly direction on the said turnpike road to the place of beginning, containing by estimation three fourths of an acre, be the same more or less."

The second deed described the land therein conveyed as follows: "A certain tract or parcel of marsh land, lying in Watertown aforesaid, containing by estimation about one acre and one quarter, be the same more or less, and bounded as follows, to wit: Beginning at the northeasterly corner of said premises, it is bounded northerly by the West Boston Bridge Road, so called, measuring on said road, from land of Cephas Brackett to land of Farewell Hoar, eleven rods and fourteen feet; thence westerly by land of said Farewell Hoar by a ditch running from said road southerly to Charles River; thence southerly by said Charles River from land of said Hoar to land of said Brackett; thence easterly by land of Cephas Brackett by a line from said Charles River to the said West Boston Bridge Road, being the bounds begun at."

The alleged breach of the covenant was the existence of a portion of a highway, called Arsenal Street, which the plaintiff contended had been laid out upon a portion of the granted premises by the county commissioners, on July 22, 1873, and of which he contended that he had no knowledge until some two years after the date of his deed. The plaintiff put in evidence the record of the commissioners, and a plan tending to show such laying out; and that a strip of land, containing four thousand nine hundred square feet, lying between the southerly line of such laying out and an old, irregular fence or railing standing on the southerly edge of the wrought road-bed of the highway, and which the plaintiff contended was conveyed to him by said deed, but which had previously been taken by the commissioners for the highway, though not entered upon. It did not appear when that fence or railing was erected, but it had stood there many years, the plaintiff contending that it had stood there since 1825; and it did not appear but that the lines of the original laying out in 1824 could be made certain by the records thereof. It was conceded that the wrought roadway never ran inside of that fence or railing. It was admitted that...