Davis v. Sherman

73 Mass. 291

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1856
• Status: Published

Opinion

Metcalf, J.

The court are all of opinion that the testimony of the witness Spooner was inadmissible, and that, for this reason, a new trial must be ordered. The question on trial was, whether Nathan Davis’s deed to Wing Howland conveyed the land in controversy. The consideration mentioned in that deed was two hundred dollars. And the testimony of the witness was admitted, we suppose, for the purpose of showing, either from the smallness of the alleged consideration, or from the great value, to the grantor, of the land in question, and its importance to the enjoyment of his other land, or from both these circumstances, that he could not have intended to convey it, and therefore that the deed did not cover it. The construction of a deed cannot be affected by such testimony.

A majority of the court are of opinion that the extrinsic evidence showed a latent ambiguity in the description of the boundary line given in the deed; that the evidence as to the acts of the parties to the deed, at the time of its execution and afterwards, was rightly admitted ; and that the instruction given to the jury on that point was correct.

The court are all of opinion that the judge rightly declined to give the last instruction asked for by the defendant.

New trial in the cowrt of common pleas.