Maker v. Lazell

• Decision Date: 02 June 1891
• Citation: 22 A. 474,83 Me. 562
• Parties: MAKER v. LAZELL.
• Court: Maine Supreme Court

22 A. 474

83 Me. 562

MAKER

v. LAZELL.

Supreme Judicial Court of Maine.

June 2, 1891.

(Official.)

Exceptions from supreme judicial court, Waldo county.

This was a petition by G. S. Maker against F. L. Lazell for partition of an island in Penobscot bay. The case was tried by the presiding justice, without a jury, and he gave judgment for the plaintiff, and ordered partition of the island as prayed for. The defendant excepted. Exceptions overruled.

J. H. & C. O. Montgomery, for petitioner.

J. P. Cilley, for defendant.

EMERY, J. The plaintiff by this petition for partition seeks to have two-sevenths of Lassell island, in Penobscot bay, set off to him in severalty. The defendant denies the plaintiff's title.

Both parties claim under Carver and Ames, who, at the time of their deed to the plaintiff, were the admitted owners of the whole island in fee. Their deed to the plaintiff was the earlier deed, and was in the usual form of a quitclaim deed, with covenants of warranty against all persons claiming under them, and was duly executed, acknowledged, and recorded The granting clause and description were in the following words: "We [Carver ar Ames] * * * do hereby remise, release, bargain, sell, and convey, and forever quitclaim, unto the said Maker, and his heirs and assigns, forever, all our right, title, and interest in and to two-sevenths of an island known as 'Lassell Island,' in Penobscot bay. * * * This deed is intended to convey two-sevenths of the title which was conveyed to us by deed of Ed win C. Burleigh, of said island; and, agreeably to clause in said Burleigh's deed, should the title of the state in said island be found not to be in the state, and the consideration money be repaid to us, we agree to refund to said Maker two-sevenths of the amount received back from the state, and deducting charges and expenses of obtaining the same. To have and to hold," etc.

The plaintiff put the foregoing deed to him in evidence and rested.

The defendant claimed title under a subsequent deed of the same island from the same grantors. The defendant then asked the court to take judicial notice that Edwin C. Burleigh was, at the time, the state land agent; and that his deed referred to in the deed to the plaintiff was a deed of the state's title, if any. He then offered to show, by various kinds of evidence aliunde, that the state had no title to convey; that no title passed to Carver and Ames by the Burleigh deed; that the state by legislative resolve had, for that reason, repaid to Carver and Ames the consideration money under that deed; and that Carver and Ames had settled with Maker for two-sevenths of the same, the latter accepting the settlement in full for his claim under their deed to him.

The presiding justice ruled that all the defendant's offered evidence was immaterial, and that, the title of Carver and Ames from other sources being admitted, their deed to the plaintiff vested in him two-sevenths of the island. Partition was ordered accordingly. To these rulings the defendant excepted.

The defendant's contention is substantially as follows: The language of the deed to the plaintiff, especially the clause beginning, "this deed is intended," etc., (as before quoted,) read in the light of the attending circumstances, (which he offered to show,) would make it manifest that the deed was only intended to assign to the plaintiff two-sevenths of whatever title Carver and Ames acquired under the Burleigh deed,—they retaining all title they may have acquired from any other, source. The offered evidence would have shown that the Burleigh deed conveyed no title, and hence that the deed of Carver and Ames to the plaintiff conveyed to him none of their title. In other words, the defendant contends that all the language of the deed, and the facts to be shown by his offered evidence, would have destroyed the deed as an instrument of conveyance of an interest in land, and left it, with all its formalities, a mere promise to account for money.

In support of this contention, the defendant invokes the broad proposition that, in considering written instruments, courts should always seek for the actual intent of the parties, and give effect to that intent when found, whatever the form of the instrument. The proposition lias been stated perhaps as broadly as this in text-books and judicial opinions, but it is not universally true. It is hedged about 'by some positive rules of law, which the parties must heed, if they would effectuate their intent, or avoid consequences they did not intend. Muniments of title especially are guarded by positive rules of law to secure their certainty, precision, and permanency. If, in the effort to ascertain the real intent of parties, one of these rules is encountered, it must control, for no positive rule of law can be lawfully violated, in the search for intent.

Some of these rules prevent an intent from becoming effectual, however clearly expressed, because the language required by the rule was not used. A deed of conveyance will not ordinarily operate to convey an estate of inheritance, unless it contains the word "heirs," however clearly the grantor may have expressed that intent in other words. Some of the rules will give a deed a different effect from that which the grantor plainly expressed. The famous rule in Shelley's Case is an example. In Thong v. Bedford, 4 Maule & S. 362, a testator devised lands to his daughter for her life, remainder to the heirs of her body, and then explicitly declared it to be his "will and meaning" that his daughter should only have an estate for life. It was held, however, by the king's bench, per Lord Ellenbokough, C. J., that the daughter nevertheless took an estate tail.

There is one rule pertaining to the construction of deeds, as ancient, general, and rigorous as any other. It is the...