It is the duty of the court to give a construction to a deed so
far as the intention of the parties can be elicited therefrom, but
the doubt in the application of the descriptive portion of a deed
to external objects usually arises from what is called a latent
ambiguity, which has its origin in parol testimony and must
necessarily be solved in the same way. It therefore, in such cases,
becomes a question to be decided by a jury what was the intention
of the parties to a deed.
Therefore there was no error in the following instructions given
by the court to the jury,
viz.:
"That if the jury believed from the evidence, looking to the
monuments, length of lines and quantities, actual occupation
&c., that it was more probable that the parties to the mortgage
intended to include therein the demanded premises than otherwise,
they should return their verdict for the tenants."
Where a claim to land was maintained upon an uninterrupted
possession of forty years, the death of the original holder and
subsequent reception of rent by his widow did not break the
continuity of possession. She is liable to account for the rent to
the heirs.
It was a suit brought by Reed, a citizen of Michigan, against an
incorporated company called "The Proprietors of Locks and Canals on
Merrimac River," in a plea of land wherein the said Reed demanded
against the proprietors a certain piece or parcel of land in the
City of Lowell and State of Massachusetts, containing seven acres
and one hundred and forty-two and a quarter square rods.
Page 49 U. S. 275
The state of the case was this:
It was admitted that the demanded premises were part of the farm
of Thomas Fletcher, who died seized thereof in 1771, leaving a
widow and two daughters, Rebecca and Joanna.
THOMAS FLETCHER
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REBECCA=JACOB KITTREDGE JOANNA=BENJAMIN MELVIN
In 1773, Rebecca married Doctor Jacob Kittredge, and removed to
Brookfield, Worcester County, Mass., where they lived and died, he
in the summer of 1813, and she in September, 1818 -- leaving eight
children and the heirs of two deceased children as their heirs at
law, and under them the tenants claim to derive their title.
In 1777, Joanna married Benjamin Melvin Sr. who removed home
upon the farm. She died in September, 1826, and he died in April,
1830, leaving seven children, as their heirs at law, under whom the
plaintiff claims to derive his title.
On 27 April, 1782, two transactions occurred which were the
source of this dispute. Kittredge and wife conveyed to Melvin
one-half of 130 acres (which appeared to be the paternal estate),
for the consideration of 300. In order to secure the payment of
this 300, Melvin (who now owned one-half by virtue of the deed just
mentioned, and the other half in right of his wife) united with his
wife in executing upon the same day to Kittredge a mortgage of a
part of the land which is thus described,
viz.:
"A certain tract or parcel of land, lying and being in
Chelmsford, in Chelmsford Neck, so called, in said County of
Middlesex, containing by estimation one hundred acres, be the same
more or less, lying altogether in one piece, without any division,
except only one county bridle road, which runs through the
northerly part of said farm or tract of land, and being a part of
the real estate of Mr. Thomas Fletcher, late of said Chelmsford,
deceased; together with all the buildings of every kind, and all
the privileges, appurtenances, and commodities thereunto belonging,
or in any wise appertaining."
The great question in the case was, whether or not this mortgage
included the demanded premises. On the part of the plaintiff in
error, who claimed under Melvin, it was contended that it did not,
and that of course the residuum belonged to Melvin.
On the part of the tenants, it was contended that the mortgage
included them, and if so, that the estate afterwards became
absolute in Kittredge.
Page 49 U. S. 276
In 1789, Kittredge entered upon the property mortgaged, for
condition broken, and on 17 April, 1789, leased the property to
Melvin for one year, and on 17 April, 1793, renewed the lease for a
year.
In 1794, Kittredge brought an action against Melvin to recover
the premises, in which suit judgment was rendered by the Supreme
Judicial Court of Massachusetts in favor of the plaintiff, and an
habere facias possessionem issued on 19 April, 1796.
It is not necessary to state the vast number of leases and deeds
and other evidence introduced into the cause by both sides to show
that the mortgage did or did not include the demanded premises,
because it will be perceived by referring to the opinion of this
Court that they considered the question to be one appropriately
falling within the province of a jury, and not one of construction
of a deed to be settled by the court.
The tenants also took defense upon another ground -- namely that
if the demanded premises were not included in the mortgage of
Melvin and his wife dated April 27, 1782, nor in the leases of 1789
and 1793, from Kittredge to Melvin, nor in the judgment of
Kittredge against Melvin of 1796, yet the entry of Kittredge in
1796, and his ejectment of Melvin, his wife and family, operated as
a disseizin of Melvin and his wife, and that, from the continued
possession of Kittredge and his lessees and their occupation and
improvement of the demanded premises as a part of the Cheever Farm,
and from the fact that every successive grantee occupied and
improved them in the same manner, they would pass by the
description contained in any of the deeds from the Kittredge heirs,
or any of the subsequent deeds under which the tenants claim, and
the heirs of both Kittredge and Melvin and their wives would be
barred.
The title of those claiming under Melvin (as Reed, the present
plaintiff in error, is already stated to have done) was brought
formerly before the Massachusetts courts, as appeared by the
following agreement, which was filed in the cause:
"It is also admitted by the tenants that the heirs of Benjamin
and Joanna Melvin entered into the demanded premises in July, A.D.,
1832, claiming the same, and in May, A.D., 1833, commenced writs of
entry upon their own seizin for the recovery of the same, and that
they prosecuted the same suits until the April term of the Supreme
Judicial Court, Middlesex county, A.D., 1835, when they became
nonsuit, and thereupon commenced a writ of right in which they
joined, and prosecuted the same until the October term, Supreme
Judicial Court, 1836,
Page 49 U. S. 277
when Rufus Melvin, one of the heirs, executed a release of said
action to the tenant."
"[Signed] JOHN P. ROBINSON,
Attorney for the
Tenants"
"October 31, 1845"
In October, 1845, the cause came on for trial in the circuit
court, when the jury found a verdict for the tenants. The court,
however, gave certain instructions to the jury, which were excepted
to, and are thus stated in the record.
"Upon this evidence the court gave full instructions to the
jury, and among them the demandant excepts to the following:"
"1st. That if they believed, from the evidence, looking to the
monuments, length of lines, and quantities, actual occupation
&c., that it was more probable the parties to the mortgage of
1782 intended to include therein the demanded premises than
otherwise, they should return their verdict for the tenants."
"2d. That the verdict of a former jury introduced by the tenants
was not evidence to control this case or the issue."
"3d. But if they should believe the testimony of James Melvin
that Doctor Jacob Kittredge pointed out on the land of his father
certain monuments as the southern boundary of his mortgage, it
would be strong evidence that the parties to the mortgage intended
originally to limit the mortgage to the line from these monuments,
and that this evidence was strengthened and supported by the other
testimony concerning the boundary south on Jonathan Williams."
"4th. That if the tenants under their respective leases from
Kittredge occupied and cultivated to the Tyler line, in such a
manner as the owners of such land would ordinarily occupy and
cultivate, and such an occupation had continued for the period of
thirty years, it would constitute such an adverse possession as
would bar the demandant's right to recover."
"5th. That the possession of the premises by said lessees under
the lease was the possession of Kittredge, the lessor, and his
heirs, he claiming to have a deed which included them, and having
turned Melvin out of possession; if it was of such a character as
amounted to a disseizin, it would in law enure to the benefit of
Kittredge and his heirs, and would be the disseizin and adverse
possession of the lessor."
"6th. That if the possession of Cheever and Thissell in 1796,
under Kittredge, included the demanded premises, and the same
possession had been continued by the subsequent lessees, as the
evidence tended to show it had been, down to the entry of the heirs
of Melvin and wife, in 1832, it constituted
Page 49 U. S. 278
in law such a continuity of possession as would bar the
demandant's right to recover."
"7th. That there was evidence, not contradicted, of a claim to
the premises by Mrs. Kittredge after the death of her husband and
of rents being paid to her, but if Mrs. Kittredge, after the death
of her husband, forgetting she had signed the original deed,
claimed said premises and received the rent therefor by mistake
till the heirs or their guardians discovered she had signed the
deed, and the rents were then settled with them, the continuity of
adverse possession would not thereby be disturbed; but there was no
evidence of those rents which were paid to Mrs. Kittredge going to
the heirs, or being repaid to them except what is to be inferred
from her will, and the tenants recognizing the title of the heirs
of Kittredge after the widow's death, and taking deeds of them.
That, on the death of Kittredge, his rights descended to his heirs
at law, some of whom were minors; that they became entitled to them
and the rents and profits paid by the lessees; that if the tenants,
who held leases from Jacob Kittredge and entered under them
remained in possession after his death, they should properly in law
be regarded as tenants holding at will, or by sufferance of or
under his heirs; and if the tenants saw fit, for any part of the
time, to pay rent to Mrs. Kittredge, the mother, or did it by
mistake, and afterwards paid it to the heirs, or their guardians,
and took deeds from them, such payments to her ought not to impair
the rights of the heirs, or those claiming under them; but the
whole transaction was evidence to be weighed by the jury of a
continued occupation by the lessees for and in behalf of those
entitled in law to the rights which Kittredge claimed when
alive."
"To which instructions of the court, given as aforesaid, the
said plaintiff at the trial excepted, and prayed this, his bill of
exceptions, to be signed and sealed by the court. All which, being
found true, the same is accordingly signed and sealed."
"In testimony whereof, I have hereunto set my hand and
seal."
"LEVI WOODBURY,
Ass't Justice of Supreme Court"
Upon these exceptions, the case came up to this Court.
Page 49 U. S. 287
MR. JUSTICE GRIER delivered the opinion of the Court.
The plaintiff in error was demandant below in a writ of entry,
in which he claimed about eight acres of land in the City of
Lowell.
The demandant claimed under Benjamin Melvin, who, it is
admitted, was seized of the land in dispute, as part of a larger
tract, in 1782. One undivided moiety of this tract Melvin held in
right of his wife, and the other in his own right.
The tenants claimed under a mortgage given by Benjamin Melvin
and wife to Jacob Kittredge, on 27 April, 1782. In 1789, Kittredge
entered under his mortgage, and leased the premises to Melvin. In
1796, Kittredge recovered the possession from Melvin on an action
of ejectment, and had possession delivered to him by writ of
habere facias.
From that time Kittredge and those claiming under him, now
represented by the tenants or defendants in this action, claim to
have had the peaceable possession of the demanded premises, and
there is no evidence of any occupation by Melvin or his heirs or
claim thereto till 1832, although they lived in the immediate
neighborhood. On the trial below, the tenants relied on two grounds
of defense, both of which they claim to have established by the
evidence:
Page 49 U. S. 288
1. That the demanded premises were included in the mortgage
given by Melvin and wife to Kittredge in 1782.
2. That even if the land in controversy was not embraced within
the deed of mortgage, yet that the entry of Kittredge in 1796, and
the ouster of Melvin and wife, operated as a disseizin, and that by
the uninterrupted and adverse possession of the tenants, and those
under whom they claim, for more than thirty years before the entry
of demandant, or those under whom he claims, his right of entry was
barred by the statute of Massachusetts of 1786, ch. 13, ยง 4; which
limits the right of any person under no disability to make an entry
into lands &c., to twenty years next after his right or title
first descended or accrued, with a saving to
femes covert
&c., of a right to make such entry at any time within ten years
after the expiration of said twenty years, and not afterwards.
The court gave "full instructions to the jury" on the principles
of law applicable to the complicated facts and somewhat
contradictory testimony submitted to them on the trial, to certain
portions of which the demandant's counsel excepted, and has here
assigned as error.
We shall proceed to examine them in their order.
I.
"That if the jury believed from the evidence, looking to the
monuments, length of lines, and quantities, actual occupation
&c., that it was more probable the parties to the mortgage of
1782 intended to include therein the demanded premises than
otherwise, they should return their verdict for the tenants."
It is objected to this instruction, that it submits the
construction of the deed to the jury; and permits them to
conjecture the probable intention of the parties from facts and
circumstances not contained in the deed. Whereas the intention of
the parties is to be found in their deed alone, which it is the
duty of the court to construe.
Taking this sentence of the charge as it stands, without
reference to the facts of the case, it may be admitted that it
affords some color to this objection. But when we look to the issue
submitted to the jury, and the testimony exhibited by the record,
the exception will be seen to be without foundation.
It is true that it was the duty of the court to give a
construction to the deed in question, so far as the intention of
the parties could be elicited therefrom, and we are bound to
presume that, in the "full instructions" which the record states
were "given to the jury," and not contained in the bill, because no
objection was made to them, the court performed that duty
correctly. But after all this is done, it is still a question
Page 49 U. S. 289
of fact to be discovered from evidence dehors the deed, whether
the lines, monuments, and boundaries called for include the
premises in controversy or not. A deed may be vague, ambiguous, and
uncertain in its description of boundary, and even when it
carefully sets forth the lines and monuments, disputes often occur
as to where those lines and monuments are situated on the ground,
and it necessarily become a fact for the jury to decide, whether
the land in controversy is included therein, or, in other words,
was intended by the parties so to be.
The mortgage referred to by the court describes the land as
follows:
"A certain tract or parcel of land lying and being in
Chelmsford, on Chelmsford Neck, so called, in said County of
Middlesex, containing by estimation one hundred acres, be the same
more or less, lying altogether in one piece without any division,
except only one county bridle road, which runs through the
northerly part of said farm or tract of land, and being a part of
the real estate of Mr. Thomas Fletcher, late of said Chelmsford,
deceased."
The description of the land conveyed by this deed is of the most
vague and indefinite character; it sets forth no monuments to
indicate the line which divides it from the remainder of the tract
owned by the mortgagor, and not intended to be included in the
deed.
Hence, the demandant, in order to show what land was intended by
the parties to be included, produced witnesses to prove the
existence in former times of another "bridle road," which he
contended was the southern boundary of the mortgaged land, because
a hundred acres lay north of this road, and the land was described
as intersected but by "one county bridle road," which ran through
the northerly part of the farm. He produced a witness also to prove
that Kittredge, the grantee, had pointed out a certain monument
near this road as marking his boundary.
The tenants contended that the deed was uncertain as to
quantity, and did not call for the road as its southern boundary.
They also gave evidence to show the actual practical location by
the parties of the land included in the mortgage as early as 1789,
which included the eight acres in controversy. For this purpose
they produced the leases from Kittredge to Melvin, the mortgagor,
dated in 1789 and 1793, and subsequently to the other tenants of
Kittredge, setting forth courses and distances which included the
demanded premises, as they contended, and proved by witnesses a
possession held accordingly since 1796.
It cannot be doubted that where a deed is indefinite, uncertain,
or ambiguous in the description of the boundaries of the
Page 49 U. S. 290
land conveyed, the construction given by the parties themselves,
as shown by their acts and admissions, is deemed to be the true one
unless the contrary be clearly shown. The difficulty in the
application of the descriptive portion of a deed to external
objects usually arises from what is called a latent ambiguity,
which has its origin in parol testimony and must necessarily be
solved in the same way. It therefore becomes a question to be
decided by a jury what was the intention of the parties to the
deed.
From this view of the case as exhibited by the record it clearly
appears that the question whether the demanded premises were
included within the limits of the mortgage, or intended so to be,
was submitted by the parties, and by the nature of the case, to the
jury, and that in order to a correct decision of the issue, the
jury should be instructed to weigh the testimony as to the
"monuments, length of lines, and quantities, actual occupation
&c.," and decide according to the weight of evidence. And such
is the meaning, and no more, of the language of the court now under
consideration. We can perceive no error in it.
II. The second matter of exception is to the instruction "That
the verdict of a former jury, introduced by the tenants, was not
evidence to control this case or the issue."
On the trial, the tenants gave in evidence the record of a
former writ of entry, brought by Benjamin Melvin, Jr., against them
in 1833, for this same land, on which a judgment was rendered in
favor of the tenants. In the trial of that case, the question had
been submitted to the jury "whether the demanded premises were
intended by the parties to be conveyed by the deed of mortgage,"
and the verdict was in favor of demandant; the court nevertheless,
on other points reserved, gave judgment for the tenants.
We understand the principle asserted by the court in this
instruction to be that this verdict in favor of Melvin was not
conclusive upon the defendants in this suit, and did not operate by
way of estoppel as to the facts stated therein.
The correctness of this instruction cannot be questioned. For
assuming that a verdict and judgment in a writ of entry
sur
disseizin to be conclusive between parties and privies in
Massachusetts, and that they operate by way of estoppel, yet the
record in this case would have no such effect, 1st, because it was
neither pleaded nor given in evidence by the demandant for that
purpose, 2d, all estoppels are mutual; the demandant was not party
to the suit, nor privy except as to one fourteenth of the premises,
and would not therefore have been
Page 49 U. S. 291
estopped as to the remainder, so neither could the tenants; 3d,
there was no judgment of the court upon the verdict, which alone
could give it the force or effect of
res judicata.
III. The third exception is to an instruction in favor of the
demandant, and ought not to have been taken or urged here.
IV. The fourth, fifth, sixth and seventh instructions excepted
to have reference to the statute of limitations, and may be
considered together. They are as follows:
"4th. That if the tenants, under their respective leases from
Kittredge, occupied and cultivated to the Tyler line in such a
manner as the owners of such land would ordinarily occupy and
cultivate, and such an occupation had continued for the period of
thirty years, it would constitute such an adverse possession as
would bar the demandant's right to recover."
"5th. That the possession of the premises by said lessees, under
the lease, was the possession of Kittredge, the lessor, and his
heirs, he claiming to have a deed which included them, and having
turned Melvin out of possession; if it was of such a character as
amounted to a disseizin, it would in law inure to the benefit of
Kittredge and his heirs, and would be the disseizin and adverse
possession of the lessor."
"6th. That if the possession of Cheever and Thissell, in 1796,
under Kittredge, included the demanded premises, and the same
possession had been continued by the subsequent lessees, as the
evidence tended to show it had been, down to the entry of the heirs
of Melvin and wife, in 1832, it constituted in law such a
continuity of possession as would bar the demandant's right to
recover."
"7th. That there was evidence, not contradicted, of a claim to
the premises by Mrs. Kittredge, after the death of her husband, and
of rents being paid to her; but if Mrs. Kittredge, after the death
of her husband, forgetting she had signed the original deed,
claimed said premises, and received the rent therefor by mistake,
till the heirs or their guardians discovered she had signed the
deed, and the rents were then settled with them, the continuity of
adverse possession would not thereby be disturbed; but there was no
evidence of those rents which were paid to Mrs. Kittredge going to
the heirs, or being repaid to them, except what is to be inferred
from her will, and the tenants recognizing the title of the heirs
of Kittredge after the widow's death, and taking deeds of them.
That on the death of Kittredge, his rights descended to his heirs
at law, some of whom were minors; that they became entitled to
them, and the rents and profits paid by the lessees; that if the
tenants,
Page 49 U. S. 292
who held leases from Jacob Kittredge, and entered under them,
remained in possession after his death, they should properly in law
be regarded as tenants holding at will, or by sufferance of or
under his heirs; and if the tenants saw fit, for any part of the
time, to pay rent to Mrs. Kittredge, the mother, or did it by
mistake, and afterwards paid it to the heirs, or their guardians,
and took deeds from them, such payments to her ought not to impair
the rights of the heirs, or those claiming under them; but the
whole transaction was evidence to be weighed by the jury of a
continued occupation by the lessees, for and in behalf of those
entitled in law to the rights which Kittredge claimed when
alive."
We can perceive no error in these instructions, when taken in
connection with the evidence exhibited by the record.
It cannot be denied, that an adverse possession may be kept up
without a personal residence where the disseizor gives leases to
tenants, puts them in possession, and receives the rents, claiming
the land as his own.
The law is also well settled by the courts of Massachusetts that
the entry of a married woman is barred by the statute of
limitations of that state after thirty years, notwithstanding her
coverture. Also that by the marriage the husband and wife become
jointly seized of her real estate in her right, and their title
must be so stated in pleading, and therefore, if a stranger enters
and ousts them, it is a disseizin of both, and a right of entry
immediately accrues to both or either of them.
See Melvin v.
Proprietors, 16 Pick. 161;
also 5 Metc. 15, and cases
there cited.
Nor can we discover anything in the evidence in this case that
could entitle the demandant to maintain that the continuity of the
adverse possession has been broken by the death of Kittredge, and
the fact that the widow may have received the rents without
objection for some time after his death.
There was no abatement by a stranger after the death of
Kittredge, nor entry or disseizin of his heirs by the widow.
"If a guardian by nurture makes a lease by indenture to one who
is already in under title of the infant, rendering rent to the
guardian, which is paid accordingly, this is no disseizin, for
there is no actual ouster consequent on such demise, and the rent
paid to the guardian must be accounted for to the infant."
Roll.Abr., 659; Bac.Abr. tit.
Disseizin, A.
So if the mother, by mistake of her rights, and without
objection, receives the rents jointly due to herself and children,
this constitutes no ouster of them, she being liable to account to
them.
Page 49 U. S. 293
The judgment of the circuit court is therefore
Affirmed with costs.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Massachusetts and was argued by counsel. On consideration whereof
it is now here ordered and adjudged by this Court that the judgment
of the said circuit court in this cause be and the same is hereby
affirmed with costs.
