Evidence, Remoteness, Declarations as to boundaries. Practice, Civil, Offer of proof. Deed.
A plaintiff in an action for breach of a covenant of seisin in a deed, the description in which, if the measurements therein stated were to govern, included land of which the defendant was not seised, cannot, in order to show that the defendant meant such measurements to govern, introduce in evidence a deed made by the defendant of the same premises which contained the same measurements as the deed to the plaintiff but which conveyed the property in mortgage to another person and was dated five years earlier.
At the trial of an action for breach of a covenant of seisin contained in a deed, one boundary of which was on land "belonging . . . now or lately to one White," there was a question whether land, then in the possession of one George White, was included in the description in the deed, and it appeared that George White was alive but personally had not been living on the premises in question for twenty years. The plaintiff called as a witness one who had known George White well and offered in evidence a conversation that the witness had had with George White while he lived in the city where the land was "as tending to show the character of his occupation of this tract in dispute, taken in connection with his acts of occupation." The evidence offered was excluded and the plaintiff excepted. Held, that the evidence properly was excluded, it not appearing that the declarations were made upon the land in question; and, moreover, that the exception must be overruled, since it did not appear from the offer what the declarations were.
In an action for breach of a covenant of seisin in a deed which described premises bounded easterly by a highway, northerly and southerly by lines measuring fourteen rods in length and westerly "by land formerly belonging to Henry Bliss, now or lately to one White," it appeared that, if the northerly and southerly lines were measured as described, a tract of land belonging to George A. White and not to the defendant had been included by the defendant in the deed and that the covenant was broken, and that if the westerly bound was on the land belonging to George A. White, the northerly and southerly bounds were considerably less than fourteen rods in length. The mesne conveyances, by which the premises included in his deed to the plaintiff had been conveyed to the defendant, were by deeds in which the entire description of the westerly boundary was "by land formerly belonging to Henry Bliss." It was agreed that so much of the tract belonging to George A. White as was claimed by the plaintiff to be included in the terms of the defendant's deed to him was included in a larger tract of land described in a deed of a former owner of the defendant's land to George A. White. The boundary which was on the easterly side of the premises described in that deed was "by land of James L. White." The presiding judge ruled that the westerly boundary in the deed to the plaintiff gave a monument which controlled the distances on the northerly and southerly bounds and that the land in the possession of George A. White was not included in the deed, and directed a verdict for the defendant. Held, that the ruling that the westerly boundary gave a monument which controlled distances on the northerly and southerly boundary was correct, but that the addition, in the deed of the defendant to the plaintiff, of the words "now or lately to one White" to the description of a bound which in previous deeds always had been only "by land formerly belonging to Henry Bliss" did not change the position of that bound; and that the question therefore was as to the position of the bound "by land formerly belonging to Henry Bliss," which might be determined by ascertaining what was the land which belonged "now or lately to one White," regarding which there was evidence which should have been submitted to the jury as to whether "one White" meant George A. White or James L. White.
SHELDON, J.
1. The mortgage deed given by the defendants to the Springfield Five Cents Savings Bank in 1898 rightly was excluded. It had no material bearing upon the issue tried in this case. The plaintiff's declaration and his whole case rested upon the claim that the defendants were not seised of the land in dispute, described in his deed as "land formerly belonging to Henry Bliss, now or lately to one White," and so that this land did not pass to him. It seems to have been agreed by both parties that this land was held by White at the time that the plaintiff took his deed; and the real question was whether the description in that deed included this piece of land. Manifestly the description contained in the mortgage deed given to a third party five years earlier could throw no light upon this question.
2. The exclusion of the statements made by George A. White, offered "to show the character of his occupation of this tract in dispute, in connection with his acts of occupation," appears at first sight to present a more difficult question. Gray v. Kelley, 190 Mass. 184. Holmes v. Turners' Falls Co. 150 Mass. 535, 547, 549. Flagg v. Mason, 141 Mass. 64. Niles v. Patch, 13 Gray, 254. But White was not deceased, and his declarations could not have been admitted under R.L.c. 175, § 66. Nor was there any offer to show that these declarations were made upon the land in question, and they were not admissible upon that ground. Long v. Colton, 116 Mass. 414, 415, and cases there cited. And see further, O'Connell v. Cox, 179 Mass. 250; Peck v. Clark, 142 Mass. 436. But the decisive reason against sustaining this exception is that there is nothing to show what the declarations offered were, and so it is impossible to say that the plaintiff was aggrieved by their exclusion. Commonwealth v. Smith, 163 Mass. 411, 429. Koplan v. Boston Gas Light Co. 177 Mass. 15, 25. Robinson v. Old Colony Street Railway, 189 Mass. 594, 597. It does not substantially appear, as it did in the case last cited, what answer was expected to the question which was excluded.
3. The ruling that the boundary in the plaintiff's deed, "on land formerly belonging to Bliss, now or lately to one White," gave a monument which would control the distance stated in the deed, plainly was correct. Percival v. Chase, 182 Mass. 371, 378, and cases there cited. But a verdict should not have been ordered for the defendant. The monument is stated, as in the other deeds, to be "on land formerly belonging to Henry Bliss," and the additional description of it as belonging "now or lately to one White" could scarcely be taken to change the identity of the monument. Moreover, in the deed of Daniel Shea to George A. White, which conveyed the land now in dispute, the courses given, as appears upon the plan used at the trial and produced before us, bring the westerly boundary of that tract upon land of James L. White. It may well be doubted whether the "one White" mentioned in the plaintiff's deed must not be held as matter of law to be James L. White, and not George A. White. At any rate, the jury could so find; and by reason of this error the order must be,
Exceptions sustained.