Warshauer v. Jones

• Decision Date: 27 March 1875
• Citation: 117 Mass. 345
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Elias Warshauer v. Mary E. R. Jones & another

117 Mass. 345

Elias Warshauer v. Mary E. R. Jones & another

Supreme Court of Massachusetts

March 27, 1875

[Syllabus Material] [Syllabus Material]

Suffolk. Writ of entry to recover a strip of land, in Boston containing about forty-seven and a half square feet, bounded "northerly on Warrenton Place two and a half feet, easterly on land late of Mary V. Randall, deceased, now of Mary E. Jones and Lydia E. Hutchings nineteen feet, southerly on land formerly of E. R. Griffiths two and one half feet, and westerly on the demandant's other said land by the brick building of the demandant thereon nineteen feet." The land was described as being part of the demandant's estate situated at the corner of Pleasant Street and Warrenton (formerly Warren) Place. Plea, nul disseisin. Trial in the Superior Court before Pitman, J., who allowed a bill of exceptions, in substance as follows:

The demandant claimed title to the strip under and by virtue of a deed to him from John Greenwood, dated June 3, 1853, in which the description of the estate conveyed was as follows: "Beginning at the corner of Pleasant Street and Warren Place and thence running easterly bounded northerly on said Warren Place sixty-two feet; thence southerly bounded easterly on land now or formerly used for a pump and apparatus four feet; thence easterly bounded northerly on said land now or formerly used for a pump and apparatus two feet; thence southerly and bounded easterly on a passageway nineteen feet; thence westerly bounded southerly on land now or formerly of E. R. Griffiths sixty feet to said Pleasant Street; thence northerly bounded westerly on said Pleasant Street twenty-four feet to the point of beginning; together with all the rights and privileges in said Warren Place which appertain to the estate hereby conveyed." The description of the same premises in the deed to Greenwood from Richard Blanchard, his grantor, dated July 5, 1867, was the same as that in the deed from Greenwood to the demandant.

The deed of John W. Blanchard to Richard Blanchard, which was given when John W. and Richard divided certain estates, including the one above described and several others in the immediate neighborhood, and all held as tenants in common by them, was as follows: "Situated at the corner of Pleasant Street and Warren Place is bounded easterly on a common passageway of five feet leading from Warren Place to a vault twenty-four feet; southerly sixty-five feet and eight inches on land of the heirs of Lemuel Packard; westerly twenty-four feet on Pleasant Street; northerly sixty-five feet and eight inches on Warren Place, with the buildings standing on the same; on the corner of the common passageway is a parcel of land six feet by three feet taken out of the above lot, which is to remain in common, being the place where the pump lot now stands, said pump also to be in common."

The demandant also put in a deed from Richard Blanchard to John Greenwood, dated May 17, 1870, and recorded with Suffolk Deeds, in which he released "a certain piece of land, reserved for a pump and apparatus, described as a piece six feet by three feet, in deeds of division between myself and my brother, John W. Blanchard" "being that portion of said lot reserved for a pump and apparatus, which was not conveyed to Mary V. Randall in my deed to her of November 9, 1869." Also a deed from Greenwood to the demandant, dated the same day, May 17, 1870, containing the same description. The tenants contended and offered evidence tending to show that Richard Blanchard was not in possession of the premises in question at the time of the delivery of the earlier deed by him to Greenwood, and that they and their mother, Mary V. Randall, and her grantors had held uninterrupted and adverse possession of the same for more than twenty years; and that in 1838 Richard Blanchard, then the owner of the demandant's estate, and Joshua Harlow, then the owner of the tenants' estate, made an oral agreement, by which Richard Blanchard was to give up all claim to the passageway in consideration of Harlow's giving to him a small piece of land on Tremont Street, then owned by Harlow; that they then agreed upon a line between the passageway and the Blanchard estate, upon which a high board fence was then erected upon the line of division, and that while he continued to own his estate he made no claim to own or use any part of said passageway, and that the same was in the exclusive possession of Harlow and his assigns, and the fence continuing during that time as when erected. The tenants then offered a deed from Richard Blanchard to Mary V. Randall, dated November 9, 1869, and recorded with the Suffolk Deeds, a copy of which is in the margin. ^[*] The demandant objected to the admission of this deed. The judge sustained the objection. The tenants then offered to put in the deed without the recitals, to which the demandant objected; the judge sustained the objection, and the tenants alleged exceptions.

There were other exceptions taken at the trial, which the opinion of the court renders immaterial. The jury found for the demandant and the tenants alleged exceptions.

Exceptions sustained.

N Morse, for the tenants. The deed excluded was admissible, for the purpose of limiting and qualifying the subsequent grant of the same grantor to the demandant. The tenants...