William H. Eliot & others vs* Laban Thatcher.

This was a real action to recover the land in question in the case in the text

Parker, C. J. The demandants claim title to the premises described in the writ, by virtue of a conveyance from David Thatcher, executed and delivered on the 10th of July, 1810. [The contents of the deed were here stated.] Upon looking at the deed of Clark Ricketson referred to in the deed to Samuel Eliot., it appears that about thirty acres of land were conveyed to David Thatcher, which included no part of the premises demanded. It appears also by the deed of David Thatcher to Laban Thatcher, made the 1st of June, 1805, that David conveyed to Laban about one half of the land which he had purchased of Ricketson, so that when he made his deed to Samuel Eliot, he was seized only of about fifteen acres of that land, instead of thirty which he intended to convey to Eliot. But on the same day on which this last mentioned deed was executed, Laban executed and delivered to David a deed of other land adjoining to the part purchased of Ricketson retained by David, and the land so conveyed by Laban includes the premises demanded. The question is, whether the land purchased of Laban by David, or taken in exchange for a part of the Ricketson lot, passed to Samuel Eliot by the deed under which the demandants claim. And this question turns upon the construction of that deed, with reference to the actual state of the title and occupation of the grantor at the time of his conveyance. It is to be considered, that when the grantor sold the land to Eliot and received the consideration, he was the owner and in possession of the demanded premises, that the same were contiguous to the land on which the dwellinghouse stood, and that he did not own or occupy the other part of the land described in Ricketson's deed, so that if he intended to include that in his deed to Eliot, describing it as containing thirty acres, and referring to Ricketson’s deed for the boundaries, he practised a gross fraud; which ought not to be presumed, if the terms of the deed can be satisfied in any way consistent with honest intentions. And we think they can, without any violent construction, and indeed so as to effectuate the probable intention of the grantor at the time. He conveys all his real property in Dartmouth, qualified only by the *45words “ or homestead,’’ signifying, as we apprehend, all his real property in his actual occupation, and which was not severed by any real estate belonging to any one else. Homestead does not mean precisely a farm, but only that part of a man’s landed property which is about and contiguous to his dwelling-house, distinguishing it from outlands. He further describes the lot conveyed as containing about thirty acres, and although the words “ be the same more or less ” be added, it is obvious, as there are no particular boundaries in the deed, that he could not have intended to convey a lot which contained only one half of that quantity. He then refers to Ricketson’s deed for more particular boundaries. Now it is obvious that he could not have referred to that deed for a description of the whole land intended to be conveyed, without undertaking to sell to Eliot what he had five years before sold to Laban Thatcher, and what he must have known at the time he had no title in. This he could not have done otherwise than by a palpable fraud upon Eliot; nor would he have undertaken to bind himself by a general covenant of warranty to make good a title which he must have known at the time was wholly without pretence. The reference therefore to Ricketson’s deed must have been a mistake. The deed to Eliot was made at Boston, many miles distance from the grantor’s place of residence. He conveyed all his property in Dartmouth in general terms ; he was unable probably, from any documents in his possession, to give a particular description, remembering only that he had purchased of Ricketson ; and it is a matter of some importance, that his interest in the lands demanded was in part derived from Ricketson, as it was by means of that title that he acquired by exchange the lands of Laban Thatcher. “ Grants or deeds are to be construed according to the intention of the parties, and if there appears any doubt or repugnancy in the words, such construction is to be made as is most strong against the grantor, because he is presumed to have had a valuable consideration for what he parts with.” Bac. Ab. Grant, I, It is also a well known rule of construction of deeds, that a precedent particular description shall not be impaired by a subsequent general description or reference. The words “ all my real property or homestead in Dartmouth ” were of themselves sufficient to pass all the grantor’s land in that town, wdiich was occupied or connected with his dwellinghouse ; perhaps the lot of land, which he owned several miles off, would be excluded from the grant, on account of the word homestead, which is used as a qualification of the words “ all my real property ”; but without the word homestead, that out-lot as well as his other land would have passed. Then if the reference to Ricketson’s deed would serve only to limit the grant to a tract much less than by the former words was intended to be conveyed, so as to reduce the quantity from thirty to fifteen acres, it is clear that the grantee’s right ought not to be restrained by that reference. It ought to be rejected as an inadvertency in the description; for the grantee cannot take according to it, the title to one half of that land not being in the grantor at the time of the conveyance.