Pillsbury v. Elliott

The question presented is one of the construction of a deed. At the date of the plaintiff's conveyance to the defendant, she was sole seized of two thirds of the tract of land described in her deed. The other third had been set out to her mother as dower in the estate of her late husband. The plaintiff was also seized of an undivided half of the reversion in the piece in which her mother had her dower, and her sister, Mrs. Currier, was seized of the other undivided half of the reversion. On the twenty-fifth of March, 1874, the plaintiff, by warranty deed, conveyed said premises to the defendant by the description set forth in the petition.

On the first day of January, 1875, the estate in dower terminated by the death of Sarah Frazier; and on the fifth day of May, 1875, the plaintiff took a conveyance from the heirs of her sister, Mrs. Currier, then deceased, of their interest in the undivided half of said reversion; and this petition is brought to compel a partition of the piece which had been set out to her mother as her dower. Did the plaintiff, by her deed of March 25, 1874, convey to the defendant the whole estate in the tract of land embraced in her deed, so that the interest which she subsequently acquired from the heirs of Mrs. Currier, in May, 1875, would enure to the benefit of her grantee, upon the ground that she is estopped by her covenants from setting up against her grantee the after acquired title? Strachn v. Foss,42 N.H. 43. The answer to this question depends upon the fact whether the language used in the latter part of the description of the premises was intended to limit or explain what precedes it, or is inconsistent with and repugnant to the preceding description. Drew v. Drew, 28 N.H. 489.

The description — "A certain tract of land situated in said town, *Page 427 being all the farm, pasture, and woodland used and occupied by us in said town, with the buildings thereon" — is definite and clear. No doubt can be raised that this would convey the whole estate in the farm, c., occupied by the grantor, as to her, including her interest in the reversion of her mother's dower, without any mention of that interest; that is, although as to her mother and her sister, Mrs. Currier, such description would not affect their interests in the farm, yet, as to the grantor purporting to convey the whole estate, it would operate to convey whatever interest she had, and she would be estopped to deny that it did not convey the whole estate.

The next section of the description is in these words: "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, except a certain piece of woodland," c., "meaning all the land we own in said town excepting the above-named woodland." It is clear this includes nothing but what passed by the language used in the preceding part of the description. The interest which the grantor then had in the dower of her mother, was an undivided half in the reversion thereof. The only sense in which this interest might be said to accrue to her afterwards was, that she would become seized of an unincumbered estate in fee in an undivided half of the piece set out as dower, upon the death of her mother. So much was certain, for, as death is certain, if the plaintiff should survive her mother, she would take a moiety in the dower tract in fee simple, or, in case of her decease, her heirs would so take. But the language — "or which may hereafter accrue to us in the dower or thirds of Sarah Frazier" — the defendant contends is comprehensive enough to cover any interest which the grantor might acquire in said dower tract by purchase. The remainder of the description, which is "also, what reversionary rights may accrue to us from said Sarah Frazier's dower," merely explains what precedes it. What were these reversionary rights which might accrue to her from her mother's dower? She had already said she included in her grant all the interest which she then had, or which might thereafter accrue to her "in the dower or thirds" of her mother. If she intended something more, why were not apt words used to express her intention? If she intended the interest of her sister, Mrs. Currier, in the reversion, it was an interest which she could acquire only by purchase. Her sister's interest was certainly a "reversionary right," but was a right belonging to the sister, and which the plaintiff did not own at the time of her conveyance to Elliott. It is certain that her sister's reversionary right could "accrue" to her only by purchase. Title to real estate cannot be said to "accrue" by purchase. It is rather "obtained" by purchase, while title accrues to a person by the silent operation of law.

It may be asked, Why should she purchase in the reversionary interest of her sister if it would enure to the benefit of her grantee? She had qualified her conveyance by expressly stating she only meant to convey "all the land we own in said town," except the twenty-five acres woodland. Her covenants of warranty, then, could only apply to *Page 428 what she conveyed, and there was no occasion for her on that ground to purchase in the only outstanding interest in the land after the death of her mother.

I am of the opinion that the petition can be maintained. According to the provisions of the transferred case, a committee must be appointed to make partition.

Case discharged.