Holmes, J.
This is an action upon the covenant against encumbrances in a deed conveying land in the town of Revere. The encumbrance relied on is an assessment for the construction of a sewer, voted by the town of Revere on September 23, 1893. The deed was dated July 7, 1893, and the covenant declared on excepted “ the taxes assessed for the year 1893.” It already has been decided that the encumbrance alleged is not within the exception. Smith v. Abington Savings Bank, 165 Mass. 285. The case now has been tried, and the plaintiff has had a verdict, subject to exceptions taken by the defendant, which are before us.
We may as well dispose first of an offer of evidence intended to affect the construction of the covenant. The defendant offered to show that the written contract of sale in pursuance of which the deed was given stated that a good and clear title should be given except the taxes assessed on May 1,1893. Perhaps it would be enough to say that we do not perceive how this [184] different language can be thought more favorable to the defendant than that which was used in the deed. But if it were more favorable, it could not affect the construction of language used at a later time by the parties, unless coupled with evidence that they actually intended to embody the meaning of the earlier document in the later one. But evidence of actual intent is not admissible to change the construction of written instruments if otherwise plain, for the reason that what a court must look for is not what the parties had in their minds, but the meaning of the words according to the general usage of speech. Tucker v. Seaman’s Aid Society, 7 Met. 188, 205. Reformation, not construction, is the means for meeting such a mistake as supposed. When it is said that the intent of the parties or of a testator is the lodestar, etc., all that is meant is that in interpreting a particular sentence you may look at the general scheme and the habit of language disclosed by the instrument, and may ascertain the facts under which the party acted to qualify what might be the result of the particular words if they were taken alone.
In order to prove the encumbrance the plaintiff undertook to prove the laying out of the sewer. It appeared that on December 12,1891, and February 8, 1892, the town voted to adopt a plan and system of sewerage made by H. T. Whitman, a civil engineer. The town clerk testified that he did not find the report among his records, but stated that he had no doubt that a letter produced, signed by Herbert T. Whitman, addressed to one of the committee of the town, and proposing a system of sewerage, was the report adopted. This letter was admitted, and the defendant excepted. We see nothing in the cases cited which suggests that secondary evidence of the report was not admissible in a collateral proceeding, — if indeed this was secondary evidence. Harris v. Whitcomb, 4 Gray, 433, 435. Howard v. Stevens, 3 Allen, 409, 410. But it does not appear clearly not to have been the original report, although coming from other custody than that of the town clerk, with whom it belonged.
The report was dated December 12, 1891, and referred to accompanying plans and a map. The town clerk testified that he could not find the original in his office. The engineer then was called and produced his office plan, a copy of which he testified [185] was delivered to the town of Revere in the fall of 1891, or spring of 1892. This was admitted, subject to exception. This evidence warranted a finding that it was the map or a plan referred to in the report.
The map and report were objected to on the further ground that they show that there was no valid laying out of the sewer, and several rulings were asked and refused to that effect. Two objections are urged. In the first place it is said that the vote of the town to borrow money for the construction of the sewer was not warranted by the article in the warrant for the town meeting. The article was, “ To see what action the town will take in regard to some system of sewerage, and raise and appropriate money for the same.” It is not pointed out why this was not sufficient, or why, if it was not sufficient to justify the scheme adopted for paying for the sewer, the distinct vote to lay out the sewer was bad. The plaintiff needs to maintain the validity of only the later vote. Next it is said that the vote to lay out the sewer was too indefinite and uncertain. The language of the report adopted by the town, so far as it refers to the immediate neighborhood of the plaintiff’s land is, “ The ■ northerly side of Beachmont Hill will drain into the sewer described above through Atlantic Avenue, and into the tank through Ocean Avenue.” Bellingham Avenue, on which lay the plaintiff’s land, was in this district, and, as we understand the testimony, the course of the sewer through it was indicated by a red line upon the plan. So far as we can judge, the sewer in that place might be found to have been laid out definitely enough. Bennett v. New Bedford, 110 Mass. 433. Sheehan v. Fitchburg, 131 Mass. 523. Commonwealth v. Abbott, 160 Mass. 282. But perhaps this particular detail is less important than the question whether the system as a whole which the town voted to construct was sufficiently defined, since the assessment voted was to be based upon the average cost of all the sewers, under Pub. Sts. c. 50, § 7. Leominster v. Conant, 139 Mass. 384. Taking this to be the proper question, the answer is similar to what we have said about the sewer in Bellingham Avenue. The report shows that a definite plan was proposed, with estimates of the cost. It would seem that the plan appeared in detail upon a map, the original of which was produced. The [186] plan was adopted subject to such changes in pipes as further study proved necessary. These facts were evidence at least that the lay-out was not too vague.
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Holmes, J.
This is an action upon the covenant against encumbrances in a deed conveying land in the town of Revere. The encumbrance relied on is an assessment for the construction of a sewer, voted by the town of Revere on September 23, 1893. The deed was dated July 7, 1893, and the covenant declared on excepted “ the taxes assessed for the year 1893.” It already has been decided that the encumbrance alleged is not within the exception. Smith v. Abington Savings Bank, 165 Mass. 285. The case now has been tried, and the plaintiff has had a verdict, subject to exceptions taken by the defendant, which are before us.
We may as well dispose first of an offer of evidence intended to affect the construction of the covenant. The defendant offered to show that the written contract of sale in pursuance of which the deed was given stated that a good and clear title should be given except the taxes assessed on May 1,1893. Perhaps it would be enough to say that we do not perceive how this [184] different language can be thought more favorable to the defendant than that which was used in the deed. But if it were more favorable, it could not affect the construction of language used at a later time by the parties, unless coupled with evidence that they actually intended to embody the meaning of the earlier document in the later one. But evidence of actual intent is not admissible to change the construction of written instruments if otherwise plain, for the reason that what a court must look for is not what the parties had in their minds, but the meaning of the words according to the general usage of speech. Tucker v. Seaman’s Aid Society, 7 Met. 188, 205. Reformation, not construction, is the means for meeting such a mistake as supposed. When it is said that the intent of the parties or of a testator is the lodestar, etc., all that is meant is that in interpreting a particular sentence you may look at the general scheme and the habit of language disclosed by the instrument, and may ascertain the facts under which the party acted to qualify what might be the result of the particular words if they were taken alone.
In order to prove the encumbrance the plaintiff undertook to prove the laying out of the sewer. It appeared that on December 12,1891, and February 8, 1892, the town voted to adopt a plan and system of sewerage made by H. T. Whitman, a civil engineer. The town clerk testified that he did not find the report among his records, but stated that he had no doubt that a letter produced, signed by Herbert T. Whitman, addressed to one of the committee of the town, and proposing a system of sewerage, was the report adopted. This letter was admitted, and the defendant excepted. We see nothing in the cases cited which suggests that secondary evidence of the report was not admissible in a collateral proceeding, — if indeed this was secondary evidence. Harris v. Whitcomb, 4 Gray, 433, 435. Howard v. Stevens, 3 Allen, 409, 410. But it does not appear clearly not to have been the original report, although coming from other custody than that of the town clerk, with whom it belonged.
The report was dated December 12, 1891, and referred to accompanying plans and a map. The town clerk testified that he could not find the original in his office. The engineer then was called and produced his office plan, a copy of which he testified [185] was delivered to the town of Revere in the fall of 1891, or spring of 1892. This was admitted, subject to exception. This evidence warranted a finding that it was the map or a plan referred to in the report.
The map and report were objected to on the further ground that they show that there was no valid laying out of the sewer, and several rulings were asked and refused to that effect. Two objections are urged. In the first place it is said that the vote of the town to borrow money for the construction of the sewer was not warranted by the article in the warrant for the town meeting. The article was, “ To see what action the town will take in regard to some system of sewerage, and raise and appropriate money for the same.” It is not pointed out why this was not sufficient, or why, if it was not sufficient to justify the scheme adopted for paying for the sewer, the distinct vote to lay out the sewer was bad. The plaintiff needs to maintain the validity of only the later vote. Next it is said that the vote to lay out the sewer was too indefinite and uncertain. The language of the report adopted by the town, so far as it refers to the immediate neighborhood of the plaintiff’s land is, “ The ■ northerly side of Beachmont Hill will drain into the sewer described above through Atlantic Avenue, and into the tank through Ocean Avenue.” Bellingham Avenue, on which lay the plaintiff’s land, was in this district, and, as we understand the testimony, the course of the sewer through it was indicated by a red line upon the plan. So far as we can judge, the sewer in that place might be found to have been laid out definitely enough. Bennett v. New Bedford, 110 Mass. 433. Sheehan v. Fitchburg, 131 Mass. 523. Commonwealth v. Abbott, 160 Mass. 282. But perhaps this particular detail is less important than the question whether the system as a whole which the town voted to construct was sufficiently defined, since the assessment voted was to be based upon the average cost of all the sewers, under Pub. Sts. c. 50, § 7. Leominster v. Conant, 139 Mass. 384. Taking this to be the proper question, the answer is similar to what we have said about the sewer in Bellingham Avenue. The report shows that a definite plan was proposed, with estimates of the cost. It would seem that the plan appeared in detail upon a map, the original of which was produced. The [186] plan was adopted subject to such changes in pipes as further study proved necessary. These facts were evidence at least that the lay-out was not too vague.
If the system was laid out according to law, it is not necessary to inquire into the validity of the assessment. “ The fact that the assessment is invalid does not remove the lien or encumbrance upon his land. The proper officers could, by proceedings in due form, correct the errors and reassess the same amount upon the land, and, if it was not paid, sell the land.” Coburn v. Litchfield, 132 Mass. 449, 451. However, the objections urged to the assessment do not impress us. The chief one is that no notice was given to the parties to be charged. It is true that notice was not given before the assessment was levied, but that is not required. Notice was given to the plaintiff after it was levied. Allen v. Charlestown, 111 Mass. 123. Then it is said that the vote of the town was bad because there was no sufficient article in the warrant. But after' the first vote of 1892 adopting the plan, and also voting that the selectmen should levy an assessment of seventy per cent, based upon the average cost of all the sewers, an article was put into the warrant for a meeting, “ To see if the town will vote to lay a sewer assessment of seventy per cent of the total cost of all sewers constructed under vote of February 8,1892,” etc. Under this article it was voted “ to ratify the doings of the selectmen in levying the sewer .assessment of seventy per cent,” etc. There was evidence from which it might have been found that the selectmen previously had purported to levy the assessment on the estates concerned. The vote appears to us to have followed the warrant, and to have been valid. We have dealt with the main arguments addressed to us, and have examined the record. We see no error entitling the defendant to a new trial.
JExceptions overruled.