text:
    John Doe, Lessee of Jacob Cheesman, Peter Cheesman and Sarah, his Wife, Beersheba Parker, Ward Pearce, John Clark and Margaret, his Wife, Ann Jackson, William Jackson, Seward Jackson, and Mary Jackson,—Watson and Sarah, his Wife (late Sarah Pearce), William Pearce, Ward Pearce, Miraba Edwards, James Edwards, Richard Pearce, William, James, and Margaret Pearce, Thomas Morris and Mary, his Wife (late Mary Pearce), Elizabeth Powell (late Elizabeth Pearce), Jacob Williams and Elizabeth Williams, Sarah Smallwood, Deborah Bryant, George L. Hood, and Letitia, his Wife, in her Right, Joseph Smallwood, Joseph Hurff, Jane Turner, John Brown and Mary, his Wife, in her Right, William Smallwood, Isaac Hurff and Elizabeth, his Wife, in her Right, Richard Sharp and Mariam, his Wife, in her Right, Randall Nicholson and Drusella, his Wife, in her Right, Jacob Mattison and Jemima, his Wife, in her Right, Joseph Nicholson and Mariam, his Wife, in her Right, Thomas Pearce, and Matthew Pearce, (all Citizens of New Jersey,) Plaintiff in error, v. Thomas Watson, Defendant.
    Where a testator made certain devises to his two grandchildren, “provided, and the legacies herein before devised are upon this special condition, that, if both my said grandchildren shall happen to die under age and without any lawful issue, then it is my will that three fourth-parts shall be equally divided between Sarah Small-wood and others,” &c., and the two grandchildren lived many years after they arrived at full age, and then both died without issue, the devise over to 'Sarah Small-wood, &c., never took effect, because the two grandchildren both arrived at full age- . .
    . The plaintiffs below having claimed the whole as the heirs of Sarah Smallwood, the court instructed the jury that they could not recover. But the plaintiffs belofr claimed, in this court, that they were entitled to recover a part, because they were a portion of the heirs of the two grandchildren. This point was not made in the court below, and therefore cannot be made here.
    The Supreme Couit of Pennsylvania decided, with regard to this very will, that the devise over to Sarah Smallwood never took effect. This decision was made in 1795, and the acquiescence of half a century would seem to close all litigation under the will. But even if it did not, this court is of the same opinion.
    This case was brought up, by writ of error, from the Circuit Court of the United States for the ’Eastern District of Pennsylvania. ■
    It was an ejectment brought by .the. lessee of Cheesman, &c., to recover certain lots in the city of Philadelphia. As the defendant below offered no evidence but contested the validity of the title shown by the plaintiff, it is necessary to set that forth. It was as follows, viz.: —
    The plaintiff gave in evidence the deed of conveyance from the Proprietors of Pennsylvania, Thomas and Richard Penn, to James Parrock, bearing date 5th September, 1749, under the great seal of the Province.

      Also, the last will and testament of James Parrock, bearing date 24th May, 1754,'admitted to probate 24th January, 1755.
    One of the arguments of the counsel for the plaintiff in error being founded upon the presumed intention-of the testator, as gathered from a comparison of several clauses in the will, it becomes necessary to insert them.
    ' The devises contained in the will material to this controversy are, in substance, the following: —
    1. To his wife, Hannah Parrock, of his dwelling-house, kitchen, and lot of ground in Second and Sassafras Streets, together with various rent charges issuing out of lots of land, to, hold during her life, with remainder of the said dwelling-house,, kitchen, and lot of ground, and certain of those rent charges, to his granddaughter, Sarah Parrock, and her heirs ; and .as to the other of said rent charges to his grandson, John Parrock, and his heirs.
    2. To his wife, Sarah Parrock, for life, the use of certain goods and chattels; and to his grandson, John Parrock, certain other goods and chattels.
    3. To his grandson, John Parrock, and his heirs, his bank and water lot in the Northern Liberties of said city, in breadth 50 feet, and depth into the Delaware 254 feet, and his piece of upland and meadow in the Northern Liberties of about fifty-six acres, and his bank and water lot in said city, in breadth 71 feet, in length or depth into the Delaware River 250 feet; also certain rent charges.
    4. To his granddaughter, Sarah Parrock-, and her heirs, a ten-' ernent and lot of ground, adjoining the messuage and lot before devised to her.; also another piece of ground, in breadth, north and south, 22 feet, in length and depth, east and west; 51 feet, bounded westward by an alley, &c., northward by.M. Hilliga’s lot, &c.; also his bank and water lot in said city, in breadth 40 feet, in length 250 feet, into the Riyer Delaware, bounded by Sassafras Street, by Front Street, and by Leeches’ lot; with certain other rent charges.
    5. He then devised to his said granddaughter Sarah, and his said grandson John, all that his pasture or piece of land in the Northern'Liberties, by Oldman’s land, Daester’s land, and the York road, containing three acres, to be equally divided between them, to said John and his heirs, and to said Sarah and her heirs.
    6. The testator then devised, in these words and figures : —

      “ And I do hereby empower and order my said executors, and the survivor of them, to sell and dispose, as soon as- my said grandchildren shall come of age, all that my piece or lot of ground, situate on the south side of' Tine Street aforesaid, about seventy-one feet from said Second Street corner, and ex-ténding east sixteen feet and one half, to Preserve Brown’s lot; south, fifty-one feet, to John Denton’s lot; west, by said Den-ton’s lot, sixteen feet and an half; and north, fifty-one feet, by John Marie’s lot; together with the appurtenances, to any person or persons that will purchase the same, and for the best price that they can reasonably get; to hold to such purchaser or purchasers, his heirs and assigns, for ever ; and to give good, deeds, or other sufficient conveyances; and the moneys arising by reason of said sale shall be equally divided between my said two grandchildren, John and Sarah Parrock, share and share alike.”

      7. He devises a house and lot to “Mary Parrock, the widow of my son John Parrock, deceased, and mother of my said grandson, John Parrock,” and to Lydia Cathcart, a house and lot, — “ to hold the said messuage so devised to said Mary Par-rock during the term of her. natural life, if she shall so' long continue my said son’s widow. And to hold the said last-mentioned messuage unto the said Lydia Cathcart, during the term of her natural life, if she shall so long continue a widow. And from and immediately after their, or either of their (the said widows) decease, day, or days of marriage, then I give- and bequeathe all and singular the said two messuages unto my said grandson, John Parrock, to hold to him and his heirs and- assigns for ever.” .
    '8. The testator gives pecuniary legacies to said Mary Parrock and Lydia Cathcart; to the children of John Smallwood, deceased, his wearing apparel; and pecuniary legacies to the children of William and Mary Paschal; to Sarah- Smallwood, the widow of John Smallwood, deceased, and to Sarah James and Hannah James, he gives pecuniary legacies.
    9.‘ “ And it is my will that the several and respective legacies herein before devised unto my grandson John Parrock, and unto my granddaughter Sarah Parrock, shall be paid and delivered to them as they shall respectively come of age.”
    10. The testator devised"all the rest and residue of his personal estate unto his wife Hannah, his said grandson John, and his granddaughter Sarah, to be equally divided between them.
    11. “ Provided always, nevertheless, and the several legacies herein before devised unto my said grandson John Parrock, and my said granddaughter Sarah Parrock, are on this special condition, that if both my said grandchildren shall happen to die under age, and without any lawful issue, then it is my will ” that the one fourth part of all and singular the real and pensonal estate unto them, herein before devised shall go to the monthly meeting of the people called Quakers, at Philadelphia; and the other three parts of said real and personal estate shall be equally divided between “ the said Sarah Smallwood, the widow of John Smallwood, and. their children; the children, of Thomas Smallwood; the children of'Benjamin Richards; the children of William Paschal, deceased; the said Sarah Paschal, said William Paschal; widow Lydia C.athcart and her children; Joseph Fordam and his children ; Richard Fordam and his children ; the children of Isaac Ashton, deceased; Sarah Thomas and her children ; Mary Lee and her children; Lydia Davis and her children ; John Spencer and his children, and to the survivor of them, and to the heirs and assigns of such survivors or survivor, as tenants in common, (and not as joint tenants,) for ever ; any thing heretofore contained to the contrary thereof in any wise notwithstanding.”
    In addition to that written evidence, the lessors, of the plaintiff gave evidence by the mouths of witnesses, conducing to. prove that the grandchildren of the testator, John Parrock and Sarah Parrock, both died without issue and unmarried; that both said John Parrock and Sarah Parrock had attained full age before their respective deaths, and died long after the death of the testator that said John Parrock died about the year 1790; that Peter Cheesman and wife (who was Mary Smallwood) were both related to John Parrock,' — said Peter Cheesman married his relation ; that John Smallwood and James Parrock were half-brothers; with other evidence of the genealogy of the lessors of the plaintiff; and that John Smallwood was dead when the will of James Parrock was made.
    The defendant gave no evidence.
    The counsel for the plaintiff then prayed the court to give the following instruction to the jury, viz. : —
    “ If the jury believe the evidence given by the plaintiffs of pedigree, then, under the true construction of the will of James Parrock, the plaintiffs are entitled to recover; it being proved by plaintiffs that both John Parrock, the grandson, and .Sarah Parrock, the granddaughter, died over .age, and without issue.”
    But the said learned judges refused to charge the jury as so requested, and gave in .charge to the jury, that under the said will the plaintiffs could not recover, inasmuch as the devise over to plaintiffs’ ancestors, in' the said will mentioned and contained, never took effect, by reason of the' devisees therein named, viz. John Parrock and Sarah Parrock, having both arrived at full age.
    To this instruction the counsel for the plaintiff excepted, and upon it brought the case up to this court. The jury, pf course, found, a verdict for the defendant.
    It was argued by Mr. Bibb, for the plaintiff in error, and by Mr. Wharton and Mr. Meredith, for the defendants.

      Mr. Bibb made the following points: —
    I. That the charge as actually given by the court was erroneous, because it limited and confined the derivation of title of the .lessors of the plaintiff solely to the question of their being devisees of James Parrock, to the total exclusion of the right of each and every of the lessors, as heir or heirs of either said Sarah Parrock or of said John Parrock, the immediate devisees of- James Parrock, who, or one of which said grandchildren, became the stirpes or root of descent and inheritance.
    II. That the court erred in the construction of the will and testament of James Parrock as given in charge to the jury, and in refusing the charge as moved by the counsel for the plaintiff.
    It is not necessary to state Mr. Bibb’s argument upon the first point, because this court decided that the point had not been made in the court below, and therefore could not be made here.
    II. That the court erred in the construction of the will and testament of James -Parrock, as given in charge to the jury, and in refusing the charge as moved by the counsel for the plaintiff.
    This leads to the .inquiry into the true intent of the testator. The intention of the testator is to be sought upon the whole instrument, taken in all its parts as one whole. The words must follow the intent of the devisor. The sentences may be transposed to preserve the meaning of a will. One part of a will shall be expounded by another.
    These rules are to be observed: — “ 1st. No will ought to be construed per parcellas, but by entireties. 2d. To admit of no contrariety or contradiction. 3d. No negation, or any nugatory thing, ought to be in a will.” 8 Yin. Abr., Devise F. a, p. 181, pi. 11,12, 13; 5 Bac. Abr., F. p. 522, pi. 13; Sparks v. Purnell, Hobart, p. 75, pi. 93; Bamfield v. Popham, 2 Freeman, 267; Frogmorton v. Holyday, 3 Burr. 1622.
    . To effectuate the intent of the testator, the word “or” shall be taken for “ and,” and the word “ and ” for “ or.” Out of the multiplicity of decisions and examples on that of “ or ” instead of “ and,” and “ and ” instead of “ or,” the following will suffice : — Jackson v. Jackson, 1 Yes. sen. .p. 217, case 113 ; Maberly v. Strode, 3 Yes. 450-454 ; Bell v. Phyn, 7 Yes. 458; Read v. Snell, 2 Atk. 642, case 351; 8 Yin. Abr., Devise F. a. 2, p. 187, pi. 1.

      Construing the will of James Parrock by the rules aforementioned, — not looking to this or that parcel, or this or that devise alone, but viewing all its parts as one whole, to find the intent of the testator, — the just conclusions are, —
    1st. That if his grandson John had died leaving issue at his death, that issue should have taken the part devised to him. So, likewise, as to the part devised to the granddaughter Sarah, if she had died leaving issue at her death, her issue would have taken that part. That intent.is manifested by the devises to them respectively, and their heirs, in the fore part of the will.
    2d. That the testator intended, by the after clauses in his will, to qualify the estates respectively devised to his said grandchildren, both real and personal, by annexing the contingency to each estate, of having lawful issue of their respective bodies living at their respective deaths.
    3d. That he intended, if the one or the other of said grand-. children should die, leaving no issue lawfully begotten, the survivor should take the whole, subject to the contingency of leaving lawful issue at his or her death.
    4th. That, in the event that both his said grandchildren should die leaving no lawful issue, then the estate, real and personal, should go, one fourth to the Quaker Society at Philadelphia, and the other three fourths to be equally divided between the persons named in the devise over to Sarah Small-wood and others.
    5th. That the testator intended to give to each of his said grandchildren only estates tail in the lands; and that the siirvivor of the two should, in case of the prior death of the other, without leaving lawful issue at his or her death, take blit an estate tail, or an estate subject to the executory devise.
    ■ 6th. The testator did not intend to give to either of his said grandchildren a clear, unencumbered, vendible estate, upon which either could raise money by sale at full age ; but intended to continue and perpetuate the estate in the family, as far forth as the law would tolerate such a perpetuity; and so intending, he therefore empowered and ordered his executors to sell a specified parcel of his real estate “ as soon as my said grandchildren shall come of age,” and divide the money thence arising equally between his said grandchildren.

      Mr. Wharton and Mr. Meredith, for defendant in error.
    The only question before the court below was the construction of the will of James Parrock. The plaintiff’s lessors pretended no other title than that of devisees of the said James Parrock. They did not claim, nor pretend to claim, as heirs at law, or statutory heirs, of John and Sarah Parrock, or either of them-After the evidence on their part was closed, (the defendant having offered none,) the plaintiffs’ counsel requested the court to charge the jury, that, “if the jury believe the evidence given by the plaintiffs of pedigree, then, under the true construction of the will of James Parrock, the plaintiffs are entitled to recover. : it being proved by plaintiffs, that both John Parrock, the grandson, and Sarah Parrock, the granddaughter, died over •age, and without issue.” The court refused so to charge, but instructed the jury that, under the will, the plaintiffs could not recover, inasmuch as the devise over to the plaintiffs’ ancestors never took effect. Arid to this charge the plaintiffs excepted; and it is the - only exception or point of law arising from the record. So that the plaintiffs in error cannot now raise a new point' in this court, which they never took below, and thus shift their ground of claim and title. ■ Their evidence was directed to the.point of establishing their right as heirs of the devisees named in the will, and .not as heirs of John and Sarah' Parrock, arid they made out no such title by their evidence.
    Then, as to the construction of the will of James Parrock. What was the intention of the testator ?
    He had given certain property to his wife, for life ; and, after .her decease, he had devised certain portions of it to his grandson, John, in fee, and certain other portions of the samé to his granddaughter, Sarah, in fee. With respect to the Vine Street property, he had ordered that to be sold, by his executors, so Soóñ as John and Sarah came of age, and the money arising from the sale to be equally divided between the two grandchildren. There was, thus, with respect to this property, an équitable conversion of the realty into personalty, in case the devisees attained their majority. .See Burr v. Sim, 1 Wharton, 252; Simpson v. Kelso, 8 Watts, 247; Reading v. Blackwell, 1 Bald. 166. Háving thus provided for his two grandchildren, he looked to the contingency of both dying under age, and without issue; and, in that event, and in that event alone, he declared that one fourth of the property devised to them should go to the monthly meeting of the people called Quakers, at Philadelphia, and the other three fourths should be divided between Sarah Smallwood and the other persons named and described in the will.
    The title of the plaintiffs, even if they should establish their pedigree, depends altogether upon their showing that both John and Sarah Parrock died under age, and without any lawful issue. ■ And upon the trial they distinctly showed, that neither of said devisees died under age. Where, then, is their title ?

      The construction of this will is settled by adjudicated cases, in Pennsylvania and elsewhere. Lessee- of Cheesman v. Wilt, 1 .Yeates, 411, in 1795, is a case upon this very will: and was an ejectment for part of the property claimed under the executory devise to the plaintiff’s lessors. The Supreme Court of Pennsylvánia held the case to be “ extremely clear,” and that the remainders could only take effect upon the happening of both contingencies, namely, the dying under age and without issue. Having no doubt, tbe court refused to reserve the point upon the construction of the will.
    In Welsh v. Elliott, 13 Serg. & Rawle, 205, under a devise of certain land to the testator’s son, Robert, after the death of his mother, and in case Robert “ departs this life before he is of age, or without lawful issue,” the land was given to another son, in fee, upon certain conditions. Robert having attained the age of twenty-one, but died without issue, it was held that he took an estate in fee-simple indefeasibly. Chief Justice. Tilghman, in this case, (p. 206,) says, — “That the estate in fee of Robert would have become indefeasible, either by his attaining the age of twenty-one or having issue, has been so repeatedly decided, that, on that point, I will only refer to two cases.” The cases reférred to by him are Holmes v. Holmes, 5 Bin. 552, and Hauer v. Sheetz, 2 ib. 532.
    In the last of these cases, under a devise to one son of testator, F., and in case he should,die under the lawful age of twenty-one, or .without issue, his share should go to another son, P., it was held that or should be construed and, and that F, having attained twenty-one, and died afterwards without issue, an indefeasible fee vested in him, and descended to his heir at law. “This has been the uniform construction of this clause in wills,”.says Tilghman, C. J. (2 Bin. 544), from the case of Price v. Hunt, Pollexferi, 645, in the year 1684.” . To the same effect are Carpenter v. Heard, 14 Pick. 449, and Dallam v. Dallam, 7 Han & Johns. 220, and many other cases.
    There was no looking on the part of the testator to an indefinite failure of issue, as one of the contingencies. On the contrary, the intent was, to provide for this contingency within a limited time, namely, at'the death of the devisees; inasmuch as the devise over was to persons in being. But the rule of construing the first devise an- estate tail has ho application, where the contingency mentioned in the'will is that of “dying under age and without issue for, as is shown by the authorities, the estate becomes an indefeasible fee in the first taker, upon the occurrence of either of the two events.
   Mr. Justice McLEAN

delivered the opinion of the court.

This is a writ of error, which brings before us a judgment of the Circuit Court of the Eastern District of Pennsylvania.

The lessors'of the plaintiff brought an action of ejectment to recover certain premises, generally described in the declaration, and situated in the city of Philadelphia. To sustain the right claimed by the plaintiff, a deed of conveyance from Thomas and Richard Penn, the original proprietors of Pennsylvania, for the premises in controversy, dated the 5th of September, 1749, to James Parrock, was given in evidence.- The will of James Parrock, dated the 24th of May, 1754, was then read to the jury, in which, after making several devises to his grandchildren, John Parrock and Sarah Parrock, their heirs and assigns, he adds, — “ Provided always, and the legacies herein before devised to the said John and Sarah are upon this special condition, that if both my said grandchildren shall happen to die under age and without any lawful issue, then it is my will that one fourth part of all and singular the real and personal estate to them before devised shall go to the montlily meeting of the people called Quakers; and the other three fourth parts to be equally divided between Sarah Smallwood and others, and to the survivors or survivor, as tenants in common for ever.”

It was proved that John Parrock and Sarah Parrock lived many years after they arrived at full age, and that both died without issue, long after the death of the testator. Evidence was offered conducing to prove that the Smallwoods named in the will descended from John Smallwood, the half-brother of the testator, and that the lessors of the plaintiff were connected with the persons to whom the devise over was made. No evidence was given by the defendant. And the lessors of the plaintiff prayed the court to instruct the jury, “ If they believe the evidence given by the plaintiffs of pedigree, then, under the true construction of the will of James Parrock, the plaintiffs are entitled to recover; it being proved by the plaintiffs that both John Parrock, the grandson, and Sarah Parrock, the granddaughter, died over age and without issue.”

“ But the court refused to charge the jury as so requested, and gave in charge to them, that under the said will the plaintiffs could not recover, inasmuch as the devise over to plaintiffs’ ancestors, in the said will mentioned and contained, never took effect, by reason of the devisees therein named, viz. John Parrock and Sarah Parrock, having both arrived at -full age.” To which .an exception was taken.

The form of the charge prayed is not free from objection. ’ It assumes the sufficiency of the evidence to prove the heirship of the lessors of the plaintiff, if the jury should believe it. Now the evidence was somewhat vague and uncertain, and the jury might well have doubted whether the heirship was proved. But the instruction given waives this objection. From the instruction, as well as the prayer,- it is clear that the claim of heir-ship was as descendants of the persons named in the will, to whom the property was devised over.

In the argument here, the counsel for the plaintiff asks the reversal of the judgment, on the ground, that the instruction was against the right of the lessors, or any part of them, to recover, although proved to be the heirs at law of John and Sarah Parrock.

The attention of the Circuit Court was not drawn to this point, no instruction was asked in regard to it, and it cannot now be made. The construction turned upon the contingent devise, and as that was held not to have taken effect, the court instructed the jury that the lessors of the plaintiff could not recover. This instruction was explicit, and could not have been misunderstood by the counsel in the Circuit Court; and as this was excepted to, and no other one prayed, it presents the only question for our consideration.

This devise was brought before the Supreme Court of Pennsylvania at January term, 1795, in the case of the Lessee of Cheesman v. Abraham Witt, and the court then held that the devise over did not take effect. They decided “ that the remainders over could only take place on the happening of both contingencies, — the grandchildren who were the primary devisees dying under age and without issue.” 1 Yeates, 411.

A decision thus made, and which seems to have been acquiesced in for more than half a century, within which time the property by descent or otherwise must have passed through the hands of persons who belonged to two or three generations, and which has necessarily become a rule of property, would seem to close all litigation under the will. But if the question remained open and unaffected by the lapse of time, the change of owners, and the great increase of value in the property, we should have difficulty in'coming to-any other decision than the one above stated.

We assent to the rule,- that, in construing a will, the intention of the testator must govern. And that intention is to be ascertained from the whole instrument. If the intent of the testator be apparent, effect will be given to it, though he may have used inappropriate terms to attain his object. Under such circumstances, the conjunctive and ” may be read as the disjunctive or,” or the disjunctive may be changed into the conjunctive. But this latitude of construction is never exercised where the language of the will is explicit, and the intent of the testator is not doubtful. In such a case, the import of the words used must be taken.

In the fore part of the will, specific devises are made of real property to his two grandchildren by the testator, and when “ they shall come of age ” he directs his executor*-- sell a certain lot and divide the proceeds between them; and certain other pecuniary legacies are given to them to be paid at the same time ; also, they are declared to be the residuary legatees of the testator. The condition then follows, that “. if both my grandchildren shall happen to die under age and without any lawful issue, then it is my will that,” &c. This devise over includes the personal as well as the real estate devised.

' That the testator intended to give the property devised‘to his grandchildren and to their issue is clear, and from this it is argued, with some force, that he intended the devise over to take effect on the contingency that they should die without issue, though after they become of full age. ■ To effectuate this, it would be necessary to change the word “and” into “or,” so that -the devise over should read, “ if both my grandchildren shall happen to die under age, or without any lawful issue,” &c.

To this reading is opposed the explicit language of the testator, which limits the condition of the devise over to the death of his grandchildren under age and without any lawful issue. These two events must happen, as constituting the contingency on which the devise was to take effect. The language is so explicit, and the intention of the testator so obvious, that it would seem he could not have been mistaken. Is there any thing in any part of the will to control this language ?

From the specific devises to his grandchildren and to their issue by the testator, his intention is inferred, in opposition to the language used, that on their death, at any time, without issue, the devise over was to take effect. This view is not sustained by the tenor of the will.

Several of the legacies to the grandchildren were money, to be paid when they became of full age. These, as well as the real estate, were devised over “ on their death under age and without lawful issue.” Now is this devise consistent with the supposition that- it was to take effect at any future period, however remote, on the death of the grandchildren ? They were to receive their légacies, and the real estate devised to thepi, when of age ; and they had a right to use their property, and especially their pecuniary legacies, as their convenience might recprire. The testator could not have intended to devise over property .thus received and necessarily appropriated. . He did not intend to withhold from these children, the objects of his regard and of his bounty, during their lives, the use of the property he gave them. The nature of this devise goes strongly to show, that the testator intended it should take effect “ on the death of the grandchildren before they became of age, having no lawful issue.”

The judgment of the Circuit Court is affirmed.

Order.

This cause came on to be heard on the .transcript of the record from the Circuit Court of the United States for the Eastern District of Pennsylvania, 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.


source: Caselaw Access Project

author: Mr. Justice GRIER

license: Public Domain

text:
    Jonathan M. Reed, Plaintiff in error, v. The Proprietors of Locks and Canals on Merrimac River, Defendants.
    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 eases, 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, &e., 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.
    This case was brought up, by writ of error, from the Circuit Court of the State of Massachusetts.
    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.

      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 Bletcheb.
    Rebecca = Jacob Kittkedge. 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, senior, 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 the 27th of 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.

      In 1789, Kittredge entered upon the property mortgaged, for condition broken, and on the 17th of April, 1789, leased the-property to Melvin for one year, and on the 17th of 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 the 19th of 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 faffing within the province of a jury, and not one of construction of a deed to be settled by the court.
    The tenants also took defence upon another ground, namely, that if the demanded premises were not included in the mortgage of Melvin and his wife, dated April 27th, T7S2, 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 man-ner, 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 Be'njamin 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, when Rufus Melvin, one of the heirs, executed a release of said action to the tenant.
    (Signed,) John P. Robinson,

      “October 31s#, 1845. Attorney for the Tenants.”
    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, &e., 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 of 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 arid 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, wás 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 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 trarisaction 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 scaled 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.
    i ^-SE “Levi
    Ass’i Justice of Supreme Court.”

    Upon these exceptions, the case came up to this court.
    It was argued by Mr. Parker and Mr. Jones, for the plaintiff in error, and Mr. Robinson and Mr. Webster, for the tenants.
    The points made by the counsel for the plaintiff in error • were the following.
    As to the first instruction. That the presiding judge erred in submitting the question of the extent of land embraced in the mortgage from Melvin and wife to Dr. Kittredge, to the jury, as he did.
    1. Because the mortgage and deed of the same date from Kittredge and wife to Melvin, senior, constituted in law one transaction, and the mortgage, viewed in this, connection, called for some limit short of the whole land described in the deed from Kittredge and wife, which fact the tenants were estopped to deny ; and if the jury were satisfied that the town bridle-road existed at the date of the transaction, at the place contended for by the plaintiff, and that it constituted as much of a division as the bridle-road expressly excepted by the parties as making a division, — the evidence showing no other division answering the call of the mortgage, — the town bridle-road became the southern boundary of the mortgage by intendment of law and legal construction, and the jury were bound to find it so ; and the presiding judge should so have instructed them, instead of leaving to their decision the meaning of the language of the mortgage.
    2. Because, if the jury believed the testimony of James Melvin,— viz. “ That his father and Dr. Kittredge, just before the making of the first lease bétween them, went upon the land and established the stake and stones and black oak stamp with stones on it, at the place testified to by him hs the southern boundary of the land claimed by Kittredge,” — then this fact, with the subsequent indentures of leases between them, recognizing these monuments and the Williams land as the southern boundary of the land claimed by Kittredge, and the writ and judgment thereon, with the solemn and-repeated recitals and statements contained in them, the admission of the tenants that the Williams land extended as far north as these monuments, and included the demanded premises, and the fact that Melvin subsequently, in 'November, 1794, repurchased the demanded premises of Williams for'a valuable consideration, constitute in law a conclusive presumption, against Kittredge and all claiming under him, of the extent of the land then owned by Kittredge, and that both Kittredge and all claiming under him were thereby estopped to say that Kittredge at that time owned the demanded premises, or that his mortgage included them. And the presiding judge should have so instructed the jury on the evidence.
    3. Because the law gives a preference to actual monuments, over length of lines, quantities, &c.; and the presiding judge ought to have so instructed the jury.
    4. The burden being upon the tenants to satisfy the jury that the mortgage from Melvin and wife to Kittredge included the demanded premises, the instruction of the presiding judge, — “ That if, from the evidence, looking to monuments, length of lines, quantities, actual occupation, &c., the jury should believe that it was more probable that the parties to the mortgage of 1782 intended to include therein the demanded premises than otherwise, they should return their verdict for the tenants,” — was wrong, and did not in law satisfy the burden of proof resting upon the tenants.
    To Point No 1: — Levy v. Gadsby, 3 Cranch, 180; McCoy v. Lightner, 2 Watts, 347; Welsh v. Dusar, 3 Binn. 337 ; Dennison v. Wertz, 7 Serg. & Rawle, 372 ; Roth v. Miller, 15 ib. 100; 4 ib. 279; Fowle v. Bigelow, 10 Mass. 384; Adams v. Betz, 1 Watts, 425; Poage v. Bell, 3 Rand. 586; Doe v. Paine, 4 Hawks, 64; Cockrell v. McQ,uin, 4 Monroe, 69; Hurley v. Morgan, 1 Dev. & Batt. 425 ; Waterman v. Johnson, 13 Pick. 261; Peyton v. Dixon, Peck, 148 ; Hart v. Johnson, 6 Ham. 87; Etting v. Bank' of United States, 11 Wheat. 59 ; Cherry v. Slade, 3 Murphy, 82; Carroll v. Norwood, 5 Har. & Johns. 163; Penington v. Bordley, 4 Har. & Johns. 458.
    To Point No. 2, under the first instruction, we cite the following authorities: — Boydv. Graves, 4Wheat. 513; Commonwealth v. Pejepscutt Proprietors, 10 Mass. 155; Houston v. Mathews, 1 Yerger, 116; Wilson v. Hudson, 8 Yerger, 398; 1 U. S. Dig. by Met. & Perkins, 474; Carroll v. Norwood, 5 Har. & Johns. 163; Smiths. Murphy, 1 Taylor, 303; Penington v. Bordley, 4 Har. & Johns. 457; Bates v. Tymason, 13 Wendell, 300; Flagg v. Thurston, 13 Pick. 145; Cherry v. Slade, 3 Murphy, 82; Clark v. Munyan, 22 Pick. 410; Slater v. Raw-son, 1 Met. 450 ; Crosby v. Parker, 4 Mass. 110 ; Houston v. Pillow, 1 Yerger, 481; Davis v. Smith, 1 Yerger, 496 ; 1 Greenleaf on Ev. 18, 19, 25, 26 ; 4 Starkie on Ev. 30; Bra-man v. Taylor, 2 Adolph. & Ell. 278, 289, 291; Loinson v. Tremere, 1 Adolph. & Ell. 792 ; Peletreau v. Jackson, 11 Wendell, 117; 4 Kent’s Com. 261, note;' Carver v. Jackson, 4 Peters, 83 ; Shelly v. Wright, Willes, 9; Crane v. Morris, 6 Peters, 598; Stowe v. Wyse, 7 Conn. 214; McDonald v. King, Cox, 432; Henrick v. Johnson, 11 Mete. 26; Willison v. Watkins, 3 Peters, 43; Denn v. Brewer, Cox, 182; Kinsell v. Daggett, 2 Fairfield, 309 ; Dewey v. Bordwell, 9 Wend. 65; Parker v. Smith, 17 Mass. 413; Gerrish v. Bearce, 11 Mass. 193 ; Jackson t>. Hasbrook, 3 Johns. 331; Adams v. Barnes, 17 Mass. 365; Howard v. Mitchel, 14 Mass. 241; Shelton v. Alcox, 11 Conn. 290; Howe v. Strode, 3 Wilson, 269; Poole v. Fleger, 11 Peters, 209; Root v. Crock, 7 Barr; 378; Fitch v. Baldwin, 17 Johns. 161; Singletons. Whitesides, 5 Yerger, 18.

      And to the point that, as the tenants now hold under and are privy in estate with all the parties who established the boundary and dividing line as aforesaid, they are estopped to deny the line so established by the respective parties, the following : — Cox, 431; 6 How. 88; 2 Murphy, 251; 2'Serg. & Rawle, 44.
    To point No. 3, under the first instruction, we cite Graham on New Trial, 278, and cases there cited.
    To point No. 4, under the' same instruction, 1 G'reenleaf on Evidence, 4; 1 Starkie on Evidence, 14; Jackson' on Real Actions, 157, 161.
    As regards the second instruction. The. presiding' judge erred, because the verdict of a former jury introduced by the tenants was evidence- to control this case and the issue.
    We contend that the verdict of a former jury put in by the tenants, rendered against them in favor of a party under whom the present demandant claims, is evidence for the demandant in the present case; as- it appears from the record, also put in by them, affirmatively, that such verdict was in all respects conformable to law. Such verdict is competent evidence. - See. Filler v. Milliner, 2 Johns. 181; 4 Com. Dig. 89; Outram v. Morewood, 3 East, 446.
    It is equivalent to an award of arbitrators upon a submission by the parties under a rule of court, which concludes the parties, and all claiming under them, by estoppel-, as to boundary at least. Goodridge v. Dustin, 5 Metcalf, 363 ; Shelton v. Al-cox, 11 Conn. 240, and the cases there cited. ■
    That it inures to the present demandant. Carver v. Jackson, 4 Peters, 83 ; Somes v. Skinner, 3 Pick. 52.
    As regards the third instruction. The demandant contends it was wrong, because, if the jury believed the testimony of James Melvin, then the monuments established by his father and Dr. Kittredge, with the Williams land, there being no evidence of any others answering the calls in the subsequent leases, writ, and judgment, were to be regarded by them as the southern line of the land embraced in the lease, writ, and judgment ; and by the solemn recitals and statements made in them by Kittredge, the admission of the.tenants that the Williams land included the demanded premises, and the subsequent repurchase of Williams by Melvin of -the demanded premises, with the ■ balance of the Williams lot, which the tenants now claim, and hold under that purchase, both Kittredge and all claiming under him were concluded and estopped to say that Kittredge at the time of .these transactions owned any of the land recited and recognized in said leases, writ, -and judgment as belonging to Jonathan Williams, and which lies immediately south of, the monuments aforesaid, or that his mortgage originally included it, and if it had, the fact' was immaterial.
    See cases cited to the first and second points under the first instruction.
    But the tenants • contend further, that, if the mortgage from Melyin and-wife does hot include the demanded premises, they have acquired" a* tide thereto by disseizin and the statute of limitations ; thatfhey and those under whom they claim have had the actual, open, notorious, and exclusive possession of the demanded premises under claim-of title, with such legal privity of title between the successive occupants as will constitute a bar.
    This position the demandant denies, and contends .that the evidence, -all of which touching this point appears upon the record, is entirely insufficient in law to constitute such a disseizin' as to bar. (The counsel then went into an examination of the evidence.)
    As regards the fourth instruction. The demandant will contend it was wrong, —1. Because the question submitted to the jury to decide necessarily involved a construction of the leases,- • which was matter of law, and should have been determined by the court. 2. Because such an occupation by the tenants, under their respective leases from Kittredge for the space of thirty years, would not necessarily constitute a bar to the demandantes right to recover in this case, even if a sufficient legal continuity of title in the lessors had been' shown, especially the • moiety derived from Mrs. Melvin, she having been under coverture. 3. Because there .was no sufficient legal continuity’ of title shown to have existed in the lessors, through whom the tenants claim to derive their title, and because it assumed the existence of facts which the whole evidence in the case expressly negatived, was foreign and did not conform to the evidence in the case, and tended to mislead the jury.
    As regards the fifth instruction. The demandant contends it was wrong, because the presiding judge assumed to tell the jury, “ that Kittredge claimed to have a deed which included the demanded premises, and had turned Melvin out of possession,” of which facts there was no evidence, but evidence showing directly the reverse; and that if there had been any evidence tending to show these facts, it' was for the jury to pass upon; and that, without the. existence of these facts, the possession of the demanded premises by the lessees under the lease was not the possession of Kittredge or his heirs, so as to constitute them disseizors • except at the election of the true owner. And that even if these facts had been shown to have existed, they would not have operated ‡. disseizin of Mrs. Melvin' during her coverture. And because the court left it to the jury to decide what facts constitute in law a disseizin.
    As regards the sixth instruction. The demandant contends it was wrong, — 1., Because the question submitted to the decision of the jury involved a construction of the written leases, which was matter of law, to be determined by the court. 2. Because the evidence did not tend to show that the same possession, or any possession, possessing the same legal elements, or having the same legal effect, had been continued by the subsequent lessees, down to the entry of the heirs of Melvin and wife in 1832, or for any time sufficient to bar, and would, not constitute in law such a continuity of possession as would bar the demandant’s right to recover. 3. Because the question of legal continuity of title and possession submitted to the jury to decide was matter of law, and should have been decided by the court.
    As regards the seventh instruction. The demandant contends it was wrong, — 1. Because there was no evidence in the case from which the jury could properly infer the fact that Mrs. Kittredge e-ver settled with the heirs of Dr. Kittredge for, or paid, the rents which she had received from the tenant, or that the tenant repaid the rents to the heirs.
    2. Because the possession and claim of Mrs. Kittredge, the widow, whether under a mistake or not, and express disclaimer on the part of the heirs, as disclosed by the evidence, which was uncontradicted, did interrupt and disturb the continuity of adverse possession, if any existed before.
    3. Because the evidence shows that the last written lease from Kittredge to Cheever, the tenant, terminated in April, 1812, more than a year before Kittredge died, and if Cheever was tenant at all to Kittredge of the demanded premises, which the plaintiff denies, it was only a tenancy at will, which terminated by the death of Kittredge in 1813, and Cheever’s remaining in possession afterwards, under the claim of the widow, and paying the rent to her, — the heirs of Kittredge, as appears, expressly disclaiming any title, — would not, against their wish and consent, make Cheever tenant at will or sufferance to them, or establish any other relation which should involuntarily enforce on the innocent heirs the character of wrong-doers and disseizors, and that the law would not properly regard them as such.
    4. Because the whole transaction of the widow’s claim and receipt of the rent, and express disclaimer on the part of the heirs, as shown by the evidence, was not evidence, to be weighed by the jury, of a continued occupation by the lessees for and in behalf of those entitled by law to the rights which Kittredge claimed when alive.
    The demandant will further contend that the instructions aforesaid were unwarranted. by the evidence, and misled the jury, and that their verdict was against law and .the evidence in the case, doing great injustice to the plaintiff.
    To the second ground of the tenant’s defence, the plaintiff cites in support of his exceptions to the fourth, fifth, sixth, and seventh instructions, the following authorities : —
    To the point of submitting the construction of the leases to the jury. Commonwealth v. Porter, 10 Mete. 263 ; Graham on New Trial, 288; McCormick v. Sisson, 7 Cowen, 715; Pang-born v. Bull, 1 Wend. 345; Hill et ux. v. Yates, 8 Taunt. 182 ; and cases cited to point No. 1, under the first instruction.
    What constitutes an actual ouster and disseizin; so that the statute begins to run ? Mass. Stat. 1786, ch. 13, sec. 4; Mass. Rev. Stat., ch. 119, sec. 3; 2 Greenleaf on Ev., '§ 430; Taylors. Hord, 1 Burr. 60; Gowper-, 689; Jerritt v. Wqare, 3 Price, Ex. R. 575; 4 Kent’s Com. (1st ed.) 482, 489; Proprietors of Kennebec Purchase v. Springer, 4 Mass. 416; Same v. Laboree, 2 Greenl. 275; Little v. Libby, Ibid. 242; Same v. Megquire, Ibid. 176; Norcross v. Widgery, 2 Mass. 506; Co-burn v. Hollis, 3 Mete. 125; Bates v. Norcross, 14 Pick. 224; Prescott v. Nevers, 4 Mason, 326; Poignard v. Smith, 6 Pick. 172; Brown v. Gay, 3 Greenl. 126; Gale v. Butler, 3 Murphy, 447; Ross v. Gould, 5 Greenl. 204Blood v. Wood, 1 Mete. 528; 1 Roll. 663, L. 27; 6 Com. Dig. 27, Seizin, F. 4; Steams on Real Actions,'6; Ricord v. Williams, 7 Wheat. 107; Blunden v. Baugh, Cro. Car. 302; Goodright v. Forrester, 1 Taunt. 578; Doe v. Lynes, 3 Barn. <fc Ores. 388; Podger’s case, 9 Coke, 104; 5 Cowen, 374; 6 Johns. 118.
    That Melvin had acquired a life estate in his wife’s half, and the statute would begin to run only as to him. 2 BI. Com. 127; Co. Litt. 670. ■ Melvin v. Locks and Canals, 16 Pick. 137; Babb v. Perley, 1 Greenl. 6; 15 Pick. 23; 22 ib. 565; 2. Cow. 439.
    There cannot be an actual.ouster of the reversion, so that the statute will run during the continuanee of the life estate. Stearns on Real Actions (2d ed.), 323; 1 Preston’s Ab. 266; Doe v. Elliot, 1 Barn & Aid. 86; 2 Kent’s Com. (2d ed.) 110; Tilson v. Thompson, 10 Pick. 357; Stevens v. ■ Winship, 1 Pick. 238; Jackson v. Schoonmaker, 4 Johns. 402; Jackson v. Johnson, 5 Cowen, 74; Wallingford v. Hearl, 15 Mass. 472.; Wells v. Prince, 9 Mass. • 508; Jackson v. Selleck, 8 Johns. 262; Starkie oii Ev. 886, 887; Co. Litt. 39 a, 246 a, 246 b, 350 a, 351 a, 352 a, 356 b.

      That there must be a legal privity of title between successive occupants, so the one legally enters upon his predecessor, and not as a trespasser. Angel on Limitation, 88; Potts v. Gilbert, 3 C. C. R. 475; Ward v. Bartholomew, 6 Pick. 415; Jackson v. Leonard, 9 Cowen, 654; Brandt v. Ogden, 1 Johns. 156; Doe v. Hall, Dowl. & Ryl. 38; Sargeant v. Ballard, 9 Pick. 251; Allen v. Holton, 20 Pick. 465; Melvin v. Locks and Canals, 5 Mete. 115; Wade v. Lindsey, 6 Mete. 407.
    That it is error for the court to instruct the jury that they may make inferences which the evidence does not warrant. Graham on New Trial, 271; Harris v. Wilson, 7 Wend. 57; Hollister v. Johnson, 4 ib. 639; Levingsworth v. Fox, 2 Bay, 520.
    That on Kittredge’s death Cheever’s tenancy ceased, and he became tenant at sufferance. Rising v. Stannard, 17 Mass. 282'; Ellis v. Page, 1 Pick. 42.
    That between Cheever and the heirs at law there was no privity of title. Co. Litt. 170 b; 1 Cruise on Real Property, 288. That upon the heirs abandoning any prior disseizin by Kittredge became purged. Small v. Procter, 15 Mass. 495.
    If the widow entered, she would be a new disseizor, as she had no right to enter as the successor of her husband. Gibson v. Crehore, 5 Pick. 146, 149; Parker v. Obear, 7 Metcalf, 24. That neither married women, nor minors, nor a non compos mentis, can become disseizors by adopting and consenting to the acts of others. 6 Com. Dig. 271, Seizin, F. 4; 1- Roll. 160, 161.
    That the deeds, through which the tenants claim to dérive title from the Kittredge heirs, did not include the demanded premises. 2 Bl. Com. 388; 6 Rules for construing Deeds; Ognell’s case, 4 Coke, 50; Shepherd’s Touchstone, 248, 249; Roe v. Vernon et al., 5 East, 51; Doe v. Greatherd, 8 East, 91; Gascoyn v. Barber, 3 Atk. 9; Wilson v. Mowitt, 3 Ves. jr. 191; Worthington v. Hylyer et al., 4 Mass. 191; Barnard v. Martin, 5 N. Hamp. 536; Woodman v. Lane, 7 ib. 241; Allen v. Allen, 14 Maine, 430; Thorndike v. Richards, 13 ib. 430; Field v. Huston, 2l ib. 69; Jameson v. Balmer, 20 ib. 425; Low v. Hampstead, 10 Conn. 23; Benedict v. Gaylord, 11 ib. 60; Stearns v. Rice, 14 Pick. 411, 412.
    That the verdict of the jury was against law and the evidence in the case. Bryant v. Commonwealth Ins. Co., 13 Pick. 543.
    (The argument of the counsel for the tenants, tending to show from other leases and evidence, that the demanded premises were included in the mortgage, is omitted.)

      II. The second position of the tenants is, that if the demanded premises were not- included in the mortgage of Melvin and his wife, dated April 27th, 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.
    „ It is the settled law of Massachusetts, that a marriéd woman, by joining with her husband in a deed, may pass the lands of which the husband and wife are jointly seized, in her right. Fowler v. Shearer, 7 Mass. 14.
    It is also the.settled law of Massachusetts that the right of a married woman and her heirs to make an entry upon lands of which she has been disseized jointly with her husband, is absolutely barred after thirty years’ adverse possession. Stat. of Mass. 1786, ch. 13, sec. 4; Melvin v. Propr. of Locks and Canals, 16 Pick. 161; Same v. Same, 5 Mete. 15; Kittredge v. Same, 17 Pick. 246.
    A married woman may be disseized at the same time with her husband. Podger’s case, 9 Coke, 104; Runnington on Ejectment, 60 ; Adams on Ejectment, 48, 49, note ; Jackson on Real Actions, 25; Polyblank v. Hawkins, 1 Dougl. 329; Registrant Brevium, 197; Rastell’s Entries, 318; Co. Litt. 30 a; 2 Inst. 342; Langdon v. Potter, 3 Mass. 219; Rolle’s Abr., Assize, E. O. 13.
    With respect to the Williams mortgage, and the testimony of .James Melvin, as mentioned in the third instruction, the instruction of the judge was right,, if it was not too favorable to the demandant,.because Williams’s mortgage was subsequent to Kittredge’s, and could not be set up against it, if it included a portion of the same lands,- as the tenants contend; and the testimony of James Melvin as to the southern boundary is totally inconsistent with the written documents made by the parties themselves at the time. This relates to the first and third instruction.
    As to the second instruction, that the verdict of a former jury in the State court was not evidence to control this case, the tenants contend it was correct, because the judgment of the State court which contained' this verdict was in favor- of the ‘ tenants, notwithstanding this verdict.
    In support of the fourth, fifth, and sixth instruction's, the tenants will-take the positions and rely upon the authorities cited before, under the second general head of this abstract, to which the court are referred.
    As to the seventh instruction, the tenants make the following points: — That by the death of Kittredge, in 1813, the land descended to his heirs at law; that he died seized, the possession being in his tenant, Cheever; that Cheevér continued in possession till after the death of Mrs. Kittredge, in 1818; that there was no evidence that Mrs. Kittredge was ever on the land after the death of her husband; that she was entitled to a life estate in one third part of the farm, and was, therefore, legally entitled to one third part of the rents; that she cannot be considered as an abator, because an abatement is an entry by a stranger, nor as a disseizor, because she did no act which can be construed as a disseizin of the heirs; that there was no evidence of any disclaimer of the.heirs, nor any evidence of an adverse possession on the part of Mrs. Kittredge, but that the legal seizin remained in the heirs as it descended from their father. 5 Mete. 23 — 35.
   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 the 27th day of 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 neighbourhood. On the trial below, the ten-r ants relied on two grounds of defence, both of which they claim to have established by the evidence: —

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,,sec. 4; which limits the right of any person under no disability to make an entry into lands, <fcc., 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 17S2 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 he 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 of fact to be discovered from evidence dehors the deed, whether the lines, monuments, and boundaries called for irfclude 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 becomes 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 Chélmsford 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 pqrt 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 léases 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 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 quantitiés, 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 shit, nor privy except as to one fourteenth of the premises, and would not therefore have been 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 possessiQn 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 discdvered 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.” .

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 tíre 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, &c., 16 Pick. 161; also 5 Metcalf, 15; and cases there cited).

Nor can we discover any thing in' the evidence in this case, that could éntitle 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 riipkes 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-

' 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.