Deed, Construction. Adverse Possession. At the hearing of a petition for the registration of the title to a farm containing a soapstone ledge, the following facts appeared: The owner of the farm conveyed a right to mine for soapstone and other minerals on the farm for life to one who did not record the deed for eight years, and, three years after such conveyance, conveyed the farm, by metes and bounds and without reference to the mining grant previously made, to another person, who three years later conveyed the farm to still another person by a warranty deed containing the following words: "The said premises subject to a mortgage . . . which together with the Soap Stone Ledge is excepted from sale." There was no evidence that either of the grantees of the farm knew of the previous conveyance of a right to mine. Held, that the quoted words were not a mere reference to the incumbrance consisting of the life estate in the ledge, but were an exception of the ledge from the conveyance.
A soapstone ledge one hundred and sixty feet long and seventy-five feet wide, which could be definitely located on a certain farm, was excepted from a conveyance of the farm. For fifty-nine years after the conveyance neither the grantor of the farm nor his successors in title quarried the ledge, and there was no way from it to a public road. The grantee of the farm and his successors in title built and maintained a fence around the entire farm during that whole period. Held, that such facts did not show a title to the ledge by adverse possession in a successor of the grantee of the farm.
BRALEY, J.
It was correctly ruled, that the prior deed from Ebenezer Rice "to one Griffin and his assigns" of the right to mine soapstone and other minerals created only a life estate, and in the absence of any recitals or statements to the contrary it must be assumed from the bill of exceptions, that Stebbins Rice to whom Ebenezer subsequently conveyed the farm, and under whom the petitioner by mesne conveyances derives title, was a purchaser for value without either actual or constructive notice of the incumbrance. Sedgwick v. Laflin, 10 Allen, 430. Wenz v. Pastene, 209 Mass. 359. The warranty deed, however, contained this clause: "The said premises subject to a mortgage to Roland Sears of two hundred dollars, which together with the Soap Stone Ledge is excepted from sale." The petitioner contends that this clause should be construed as meaning only a reference to incumbrances which were excepted from the grantor's covenant of warranty. Undoubtedly where the terms of a deed are ambiguous parol evidence of the circumstances under which the grant was made is competent. Derby v. Hall, 2 Gray, 236, 243. But while the reference raises a conclusive presumption of the grantor's knowledge of the ledge, the petitioner fails on the record to show that Stebbins Rice even then knew of the life estate. The language used, although technically inapt as to the mortgage, is appropriate as to the ledge, and when so construed the grantor's intention by the exception to take out of the premises conveyed the portion referred to, is free from ambiguity, and the ruling that no title thereto passed by the grant was right. Ashcroft v. Eastern Railroad, 126 Mass. 196, 198.
Nor has the petitioner acquired ownership of the ledge by adverse possession. The evidence fails to show, that with either the actual knowledge or the acquiescence of the owner, the petitioner and his predecessors in title asserted openly and notoriously an adverse continuous claim which during the period required had ripened into a title by prescription. Bigelow Carpet Co. v. Wiggin, 209 Mass. 542. The parties agreed that the outcropping ledge which had not been quarried during the forty and more years elapsing since the conveyance to Rice and the ownership of the petitioner, could be definitely located, and that no way had been defined or established connecting the ledge with the public road. But the mere failure of Ebenezer Rice during his life or of his heirs to quarry the ledge, did not devest his title, and the erection and maintenance of a fence around the entire tract of forty acres, while significant of an assertion to the enjoyment of the whole by the grantee, and those succeeding him, furnished of itself, as the trial judge properly ruled, no proof of the other essential elements. Sargent v. Ballard, 9 Pick. 251. Bigelow Carpet Co. v. Wiggin, 209 Mass. 542.
The final ruling that the petitioner had not established any title to the ledge having necessarily resulted from the previous rulings, the exceptions must be overruled.
So ordered.