Way, By exception or reservation, By unrecorded grant. Deed, Construction of covenant, Unrecorded grant. Easement.
A clause in a covenant against incumbrances in a deed, excepting from the covenant a right to pass and repass on a certain road over the land conveyed, merely modifies liability upon the covenant, and does not estop the grantee from denying the right described; still less is it an exception or a reservation from the grant.
An instrument executed under seal by the owners of adjoining lots of land, purporting to establish the boundaries of a right of way, although unrecorded, is binding upon subsequent owners of the servient lot having notice of its existence.
HAMMOND, J.
By the granting and the habendum clause in the deed of Thacher to Goff, the land therein described was conveyed in fee. The clause "except a right to pass and repass in the road leading from the barn to the swamp where we get mud by our putting up bars, with teams and otherwise" first appears in the covenant against incumbrances.
This exception must be regarded therefore as inserted only for the purpose of modifying to that extent the liability upon the covenants. It did not estop the grantee from denying the existence of the right therein described as against any person asserting it. Weed Sewing Machine Co. v. Emerson, 115 Mass. 554. Much less was it a reservation or exception from the grant; and the principle upon which cases like White v. New York New England Railroad, 156 Mass. 181, and Hamlin v. New York New England Railroad, 160 Mass. 459, 461, rest is not applicable. It follows that the second and third of the defendant's requests for instructions should have been given, and the instruction that the jury might consider the deed from Thacher to Goff as establishing a right of way which is still existing across the plaintiff's land was erroneous.
No error is shown in the admission of the sealed agreement subsequently executed by Thacher to Goff, purporting to establish the boundaries of the way. Although unrecorded, it was binding upon subsequent holders under Goff with notice.
Exceptions sustained.