Scaplen v. Blanchard

• Decision Date: 22 November 1904
• Parties: SCAPLEN v. BLANCHARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

187 Mass. 73

72 N.E. 346

SCAPLEN v. BLANCHARD.

Supreme Judicial Court of Massachusetts, Essex.

November 22, 1904

COUNSEL

J. C. Batchelder, for plaintiff.

Wm. H Niles and E. M. Stevens, for defendant.

OPINION

KNOWLTON C.J.

The commissioner appointed to consider the petition to approve exceptions has made a report presenting a bill of exceptions agreed to by both parties, which is the original bill with slight amendments, and which he finds to be in all respects conformable to the truth. It also appears that the original bill was drawn in good faith, in the belief that it fairly set forth the rulings and the evidence, and the commissioner finds that the disallowance of it resulted from a misunderstanding between the parties. We will therefore consider the questions presented by the exceptions.

In 1871 the tenant in this action and one Hurley were the owners of a tract of land which included the demanded premises. By a quitclaim deed dated April 2, 1873, they conveyed it to Edward Mahon. By a warranty deed dated April 23, 1873, Mahon conveyed a part of it, including the demanded premises, to the present tenant. In 1877 Hurley and the tenant executed to Mahon another deed, bearing date February 28, 1877 describing the same premises that were described in their deed to him dated April 2, 1873, and containing in the in testimonium clause these words: 'This deed is given to take the place of a deed given April 23, 1873, and is lost said lost deed being of the same tenor as this one.' It is to be noticed that at this time the tenant, through Mahon's deed of April 23, 1873, had acquired a title to a part of the property described in these deeds to Mahon, which was later than his original title that he and Hurley conveyed to Mahon. The question at the trial was whether Mahon, by this confirmatory deed from Hurley and the tenant, if we may call it so, acquired, in addition to the original title which he had previously held, the new title of the tenant, which he himself conveyed to the tenant by the deed of April 23, 1873. In 1881 Mahon executed to one McCormick of Brooklyn, N. Y., a deed, whose description included, with other land, the demanded premises, and the demandant claims under this last conveyance. Although the tenant raises the question whether the demandant has the title which McCormick took under this deed, we will assume in favor of the demandant that he has. We therefore come back to the deed of February 28, 1877, to determine its legal effect, in view of its peculiar language, relative to the lost deed. The recital purported to show that the grantee had previously acquired a perfect title to the property, and that his only embarrassment in regard to it resulted from a loss of the deed. If the deed had not been recorded, he was left without a visible paper title. To obtain the muniments of title by compulsory process, he would be obliged to bring a suit in equity. If the deed was recorded, he not only had a good title, but he could easily establish it by proof. Presumably he did not know, or did not remember, that the deed had been recorded, and he accordingly obtained the second deed. In considering it the judge might well receive proof of the situation and previous dealings of the parties in reference to the subject referred to in it, for the purpose of applying the language of the deed, and especially of the recital in it, to the conditions to which it related. Whittier Machine Co. v. Graffam, 156 Mass. 415, 31 N.E. 485. Accordingly, evidence was received that the deed of April 2, 1873, which, except in date and the language of the in testimonium clause, was identical with the later deed, was given at the same time as the deed from Mahon...