Deed, Construction. One R., who was the owner of a mill pond and the surrounding land, all of which was subject to a mortgage, made a deed, to a purchaser named G., of his equity of redemption in a parcel of this land south and west of a part of the mill pond and bounded on the northerly and easterly sides by the edge of the pond. On the same day the mortgagee of all the land executed a deed of release to G. of the same parcel of land with the same description except that the northerly and easterly sides were described as bounded "by the mill pond belonging to R." Both of the deeds were acknowledged and recorded on the day of their execution and were recorded on consecutive pages of the same book in the registry of deeds. The description of the property in the deed of release from the mortgagee concluded with the words, "with all the privileges mentioned in a deed given by said R. to said G. this day and subject to all the restrictions and reservations therein mentioned." The restrictions and reservations in the deed of R. gave G. "the privilege of filling up the mill pond on the northerly and easterly sides of the aforenamed premises one rod in width from the lines above described." "The lines above described" were "the edge of my mill pond" and "the edge of said mill pond." Upon a petition in the Land Court for a registration of the title to a lot of land covered by the mill pond which was acquired by the petitioner under a deed from the mortgagee named above, after his foreclosure of the mortgage upon the portions of the land not released from the mortgage, and which was confirmed by a deed from the assignee in bankruptcy of the estate of R., the respondent claimed title under G., and contended that the northerly and easterly boundary of his land was not the edge of the mill pond but was the thread of a certain stream on the other side of the land claimed by the petitioner, basing his contention on the ground that the partial release to G. of the mortgage mentioned above included the land claimed by the petitioner and the part of the pond which covered it. Held, that the two deeds to G. above described, although they were executed by different parties, could have been found to have constituted parts of one transaction and to have been made pursuant to a common understanding and arrangement on the part of all persons interested, that the privilege granted by the deed of R., the mortgagor, which was incorporated by reference in the release of the mortgagee, was inconsistent with any other construction than that the boundary of the respondent's land was the edge of the mill pond, and that a finding for the petitioner was warranted.
MORTON, J.
The judge of the Land Court ruled that the deed from the bank to Goodell released only such title as the bank had in and to the same land and only the same land as that described in Richardson's deed of the same date to Goodell, and that that ruling rendered it "unnecessary to consider the matter of adverse possession, or further record title." The effect of the ruling was to establish the edge of the mill pond as claimed by the petitioner, instead of the thread of the stream as claimed by the respondent, as one of the boundaries of the land described in the bank's deed. The only question before us is the correctness of the ruling so made. We think that it was right.
Although executed by different parties the two deeds could well have been found to have constituted parts of one transaction and to have been made pursuant to a common understanding and arrangement on the part of all persons interested. They bear the same date and were executed and acknowledged on the same day, and were recorded on the same day as that on which they were executed and acknowledged, in the same book, on consecutive pages. Moreover one was a conveyance of the equity of redemption in the premises described in the deed, and the other was a release by the bank of its mortgage. The presumption would be very strong that the release, being a partial one, was intended only to cover so much as was conveyed by the mortgagor. But, however that may be, the description in the release from the bank concludes with the words, "with all the privileges mentioned in a deed given by said Samuel S. Richardson to said Goodell this day and subject to all the restrictions and reservations therein mentioned." Not only, as it might be argued, does this tend still further to show that the two deeds were given as parts of one and the same transaction, and that the premises released were intended to be the same as described in the deed from Richardson to Goodell, but when we turn to that deed to see what are the restrictions and reservations therein mentioned we find that the grantee is given "the privilege of filling up the mill pond on the northerly and easterly sides of the aforenamed premises one rod in width from the lines above described." "The lines above described" are the "edge of my mill pond," and "the edge of said mill pond," and the privilege thus granted, which is by reference incorporated into the release from the bank, is entirely inconsistent with a construction of that instrument which would carry the boundaries on the mill pond to the thread of the stream.
What the result would be if the release stood alone, and without any reference to the deed from Richardson to Goodell or to the restrictions and reservations therein contained, we need not consider.
Exceptions overruled.