The questions presented by this case are whether the several rulings of the judge of the superior court, as stated in the bill of exceptions, are correct.
The first relates to a portion of the locus, which is described in the mortgage of the plaintiff George Sparhawk to Lydia Noyes, made on the 14th of March 1857. Before any of the acts complained of were done by the defendant, the mortgagee had entered to foreclose, and she has ever since remained in possession. Sparhawk held the property in right of his wife, and mortgaged his estate. The alleged trespasses consisted of the use of the locus as a way by drawing loads of gravel over it with teams. The ruling that the plaintiff had no title to that portion of the premises, sufficient to maintain this action, was correct. If the acts of the defendant were tortious, the mortgagee was the party entitled to' the action, and not these plaintiffs, there being no injury done to the reversionary interest.
The next exception is to the ruling that the plaintiffs cannot maintain this action by virtue of the title derived from a deed of Charles Wills to Mrs. Sparhawk made in August 1854. The title of Wills was derived from a deed of James C. Dunn, collector of taxes for the city of Boston, made on the 23d of August 1851. It was a sale of the locus for taxes assessed by the city against the plaintiff George Sparhawk in 1849 and 1850; and there was no evidence of actual possession under this tax title. But if there were no other objection to this title, the interest which George Sparhawk acquired under it, which was a tenancy for *585life in right of his wife, would pass to his mortgagee by way of estoppel, the mortgage containing covenants of warranty. Therefore, if any injury was done by the defendant, it was done to the mortgagee, and not to him or his wife.
The next exception relates to the effect of the deed of Mrs. Sparhawk to Walter Cornell, made December 9th 1833, prior to her marriage. He was tenant in common with her of the lot conveyed. The land is bounded “ south by Tuckerman’s land.” But at that time there was a strip of the land some sixteen feet wide in Tuckerman’s possession. He and Johnson Jackson were before that time adjoining proprietors, and had established a line between them, which they supposed to be correct, but which proved to be too far north; and Tuckerman had enclosed this land up to that line within his lot by a fence. The plaintiffs contend that as this narrow strip was in the adverse possession of Tuckerman when Mrs. Sparhawk’s deed was made to Cornell, the conveyance was merely void as to that part. As to the construction of the deed; if it had bounded Cornell’s lot “by Tuckerman’s fence,” it would be construed to convey nothing south of the fence; but as it bounded the lot “ by Tucker-man’s land,” it must be construed to extend to his true line. The cases of Cornell v. Jackson, 9 Met. 150, and Cleaveland v. Flagg, 4 Cush. 76, are conclusive on this point. And by the authority of the latter case, the deed to Cornell was not void as to that land, but he would have been entitled to an action in the name of his grantor to recover it; or if he could get possession of it without an action, peaceably, he would hold it by virtue of his deed. It appears that it has long been open to the public as a way, and the Boston and Worcester Railroad Corporation, the grantees of Cornell, have been able to use it without interruption. The strict doctrines that anciently prevailed in regard to the conveyance of land while it is held adversely to the grantor have been greatly modified of late. The reasons on which they were established have ceased to exist; and the doctrine stated in the cases cited is reasonable and just. And though the deed of Mrs. Sparhawk to Cornell is a quitclaim, so that she might not be estopped from acquiring a better *586title afterwards, yet in this case she has acquired no better title than that which she had when she made this deed. All that she claims now is the same title which she had then, simply relieved from a disseisin. Independently of this consideration, however, the title of Cornell and his grantees is good, and the ruling must be sustained.
The next exception relates to the right of way over Orange Street, easterly of the Cornell lot. The various deeds referred to are bounded by it, by the name of Orange Place. It was used as a way, and this name was given to it as a mere name of designation to distinguish it from other ways and streets in the city. The deed of Cornell to the Boston and Worcester Railroad Corporation conveys “ a right of way over Orange Street, so far as I can legally grant it.” The way is appurtenant to the several lots bounding upon it, by the fair construction of the several conveyances referred to. The Boston and Worcester Railroad Corporation had a right to use it, and as the defendant used it by their authority this action cannot be maintained. Exceptions overruled.