Allen v. Holton

Wilde J.

delivered the opinion of the Court. The questions which have arisen on the decisions of the presiding judge at the trial, and his instructions to the jury, are first, whether the evidence offered by the demandant was rightly excluded, and that offered by the tenant rightly admitted ; and secondly, whether his instructions to the jury upon the evidence admitted were correct.

The tenant set up a title by disseisin, and to prove that he an; those under whom he claimed had had the uninterrupted, excmsive and adverse possession of the premises by him claimed, for more than thirty years, he offered, with other evidence, the deposition of one Henry Tiffany, which was objected to by the demandant’s counsel on the ground that the tenant claimed under a deed of warranty from Henry Tiffany. This objection would be well maintained, if a literal construction of the covenant of warranty could be allowed, without reference to the other parts of the deed. But every deed is to be construed accord'ng to the intention of the parties as manifested by the entire instrument, although it may not com port with the language of a particular part of it. Thus a recital or a preamble in a deed may qualify the generality of the words of a . covenant or other parts of a deed. 4 Cruise’s Dig. tit. 32, Deed, c. 23, § 8. The case of Moore v. Magrath, Cowp. 9, is a strong case to show to what extent a court may go in qualifying and even in rejecting a particular clause in a deed, in order to effectuate the intention of the parties. In that case the lands intended to be granted by a deed of settlement were particularly named in the preamble, and were afterwards minutely described in the premises, and then followed a sweeping clause purporting to convey “ all other the donor’s lands, tenements and hereditaments in Ireland.” And the court held, that nothing passed by this sweeping clause ; the court being of opinion, from the words of the preamble, that the donor did not intend to include his paternal estate (which was situate in a different county from those in which the lands intended to be conveyed were situate) and that it was more than probable that the drawer by mistake omitted some words in the sweeping clause.

Whatever may be thought of the intention of the parties in that case, we think the intention as to the extent of the grant in the present case is sufficiently plain. The grantor conveys his own title only, and all the subsequent covenants have reference to the grant, and are qualified and limited by it. That this was the intention of the parties cannot, we think, be reasonably doubted, and the words of the covenants are' to be so construed as to effectuate that intention.

As to the declarations of Asa Tiffany, which were offered to be proved on the part of the demandant, we think they are clearly inadmissible, being merely hearsay testimony, the tenant claiming no title under him, nor by virtue of his possession;

In regard to the instructions to the jury, several exceptions have been taken.

It was proved that Asa Tiffany, before and until 1817, had an occupation and possession of the land, either as sole tenant, or tenant in common with Edward L. Tiffany & Henry Tiffany, from whom the tenant derives title ; and on this evidence the jury were instructed, that if Asa Tiffany had the sole possession and occupation of the land, it would be an interruption of the possession under which the tenant claimed ; otherwise if he held in common with Edward L. & Henry. We are of opinion that this direction to the jury was founded on a sound distinction. Where different persons enter upon land in succession, the last possessor cannot tack the possessions of his predecessors to his own, so as to make out a continuity of possession, so as to bar the right of the owner, without conveyances from them. Potts v. Gilbert, 3 Wash. C. C. R. 479.

But in the present case the possession of Edward L. & Henry Tiffany was a continued possession, although for a part of the time they held in common with Asa. When he abandoned the possession, his right, if he had any, was extinguished. We understand he has had no possession of, nor has made any claim to the premises, since 1817, which is good presumptive proof of an abandonment.

Another exception to the instructions to the jury relates to the extent of the tenant’s possession, and that of those under whom he claims. The land claimed by the tenant was bounded on the one side by the Connecticut River, and on the other ••ide by an old road, and was improved and cultivated by the tenant, and those under whom he claims, except a narrow strip by the river and by the road. On this evidence the jury were instructed, that when land was inclosed by a fence or river or road, and there was an occupation of the land extending as near to the river, fence or road, as was convenient, having reference to the nature and situation of the land, it might, if such was the intention of the occupant, be a legal possession of the whole lot, although there might be a narrow strip by the fence, river, or road, not actually cultivated.

We have had some doubt whether this direction to the jury were strictly correct; but on reflection we are of opinion that it is not liable to any reasonable exception.

To constitute a disseisin there must be a pedis possession actual occupancy, or substantial enclosure. When therefore a disseisor claims to be seised by his entry and occupation merely, his seisin cannot extend farther than his actual exclusive occupation. Proprietors of Kennebeck Purchase v. Springer, 4 Mass. R. 418 ; Bates v. Norcross, 14 Pick. 228

The possession of the occupant must be such as to designate its extent, so that the owner may have notice of what he has been disseised ; otherwise his title may be barred by lapse of time before he has had notice of the extent of the disseisin. This is a very just and reasonable rule of law and ought not to be infringed. But we think it would be too strict to reqrare, when .a field is cleared and cultivated, that every foot of the land should be actually cultivated. There may be a strip or paten of land in the field, here and there, which could not be cultivated to any advantage. There may be rocks in it, and in lands newly cleared there may be stumps, and other obstructions to cultivation, and yet if the occupant cultivates the land so far as circumstances may allow, he must certainly be considered as having the exclusive possession of the whole field. If therefore a lot is bounded on a river and the occupant cultivates it as near the margin of the river as he conveniently can, he must be deemed to be in possession down to the stream. A different rule would be of little benefit to the disseisee, and would be very vexatious to the occupant.

The remaining exception to the instructions of the Court, is, as it appears to us, well founded.

There was a small piece of land disclaimed by the tenant, which adjoined the part claimed, in a corner between the road and the river ; and there was evidence tending to show that a fence was made from the road to the river for the purpose of protecting the crop on the tenant’s land ; so that in fact this piece was inclosed by the fence with the land of the tenant. This fence was erected by persons in the employment of the tenant; and there was evidence tending to show' that the tenant, and those in his employment, had cut a tree and some brush upon this piece. Thereupon the jury was instructed, that the cutting of a tree or a little brush and erecting a fence on the land disclaimed, unless there was an intention to occupy, or claim it, or exclude the owner from it, would not support the issue in this respect on the part of the demandant. The jury should have been instructed, that upon the facts proved, the demandant had a right to elect to consider himself disseised for the sake of his remedy, although no actual disseisin was proved. Almost every injury which can be done to real estate may entitle a party to recover in a writ of entry, if he will admit himself to be disseised. 2 Wendell, 177. To a plea of disclaimer or non-tenure it is a sufficient reply, that the tenant was at the commencement of the action in the possession of the premises disclaimed. If the law were not so, a party could not commence an action to recover his lands in the possession of another, without exposing himself to the liability to pay costs, if the tenant should disclaim, unless there had been an actual disseisin. In the present case the tenant was clearly in possession of the part of the premises disclaimed, and whether he intended to hold it adversely to the demandant’s claim, or merely for his own convenience, the demandant could not determine, nor is it material.

For this reason a new trial must be granted, unless the ten ant will consent to have the verdict altered so as to entitle the demandant to his costs.

New trial, nisi.