Reed v. Proprietors of Locks and Canals,
49 U.S. 274 (1850)

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U.S. Supreme Court

Reed v. Proprietors of Locks and Canals, 49 U.S. 8 How. 274 274 (1850)

Reed v. Proprietors of Locks and Canals

49 U.S. (8 How.) 274


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.




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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

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