That the defendant, at the time he accepted the deed of March 25, 1875, did not understand its true meaning to be what he now contends is its legal construction, seems to be shown by the fact that, on the same day, he took from Sarah Frazier a lease for her life of that part of the same premises set off to her for dower — that is, an *Page 425 assignment of her dower. In the face of this fact, his present contentions that he bought and paid for the whole farm except the twenty-five acres woodland, does not impress me with much force. The question however, is not what the parties intended to do, but, What did they do? — what intention did they express in the deed? That is to be gathered from the words of the deed, read by the light thrown upon it by the condition of the subject-matter to which it applied. The deed is very inartificially drawn. How stood the title at the time of its execution? As I understand the case and the admissions of counsel, the plaintiff was sole seized in fee of the whole farm, except that part set off to her mother for dower. As to that portion, she was seized in fee as tenant in common, or copartner, with her sister, Julia Ann Currier, of the remainder after the life estate of their mother. It does not admit of doubt, in my mind, that the actual intention of the grantors was to convey to the defendant just what the plaintiff had in the premises, and nothing more. If there had been a different intention; if the bargain had been, that the plaintiff should buy in the interest of her sister in the reversion of dower, and that such interest should thereupon pass by operation of the deed to the defendant, — it passes belief that some more definite and clear expression of such bargain would not have been inserted in the deed, or been provided for by a separate instrument.
Let us look at the deed, and see whether it expresses what I am thus compelled to believe was the actual intention of all the parties to it, or something more.
The first clause in the description is, "all the farm, pasture, and woodland used and occupied by us in said town." The plaintiff, with her husband and mother, was in the common occupation of the whole farm; and if this clause stood alone, I should think the defendant's construction would be correct. But there is more in the description, that must not be lost sight of. First, the clause, — "also, all right, title, and interest which we now have, or which may hereafter accrue to us, in the dower or thirds of Sarah Frazier;" second, the exception of twenty-five acres woodland; third, the declaration of what the parties meant to convey, "meaning all the land we own in said town, excepting the above-named woodland." Two things are here made plain, namely, — The parties intended to except twenty-five acres from the farm they were using and occupying; and they intended to convey what land they owned in town, except said twenty-five acres, and no more. What was the clause about reversion of dower inserted for, and repeated as the closing words of the deed? It may be that this is a question more easily asked than answered. So far as regards the first part of it — "also, all right, title, and interest which we now have in the dower or thirds of Sarah Frazier" — I cannot conceive any view in which that adds or subtracts anything from the description. "Or which may accrue to us;" — what does that mean? The defendant says its meaning is broad enough to cover the reversion of dower which was in Julia Ann Currier at the time of the deed, and which the plaintiff *Page 426 afterwards bought. But the trouble with this is, that he must have known, at the time he took the deed, that it meant no such thing; for the grantors do succeed in saying, in words that are plain to the apprehension of anybody, that the meaning of the description is, all the land they own in town excepting the woodland. They did not own this reversion of Julia Ann Currier, and had not a particle of interest in it any more than in the farm of their next neighbor. Besides, the words, "or which may hereafter accrue to us," are not apt words to express the idea of obtaining by bargain and sale. To buy pay for, and receive a deed, implies action on the part of the purchaser: to come into possession or ownership of a thing by having it accrue, does not imply action by the recipient.
It is probable that the person who wrote this deed, knowing the situation of the title and what the parties desired to do, had it in his mind that it was necessary to say something in order to provide for the passing of the whole estate when the life interest of Sarah Frazier fell in. The words employed for that purpose are doubtless open to criticism; but I think it is impossible to give them the effect contended for by the defendant, in the face of the express and plain declaration that the whole meaning is, to convey the land owned by the plaintiff in town.