
    Job Pitts vs. Welcome Farnum & another.
    P., to secure one debt, made a mortgage to B. of three parcels of land: 1. A tract of land, situated in the towns of M. and U., on the south-westerly side of the B-river, containing by estimation one hundred and thirty acres; 2. A certain othei tract of land, containing by estimation one fourth of an acre, situated in M.; 3. A certain other tract of land, containing by estimation five acres, situated in M. on the same side of the B. river, and on both sides of the B. canal. P. had formerly resided on the first tract, occupying the others as parts of the same farm. P.’s administrators obtained a license from the probate court to sell the whole of P.’s real estate for the payment of his debts, and advertised the whole for sale, described in the notice, so far as could apply to the premises so mortgaged, as “ consisting, first, of a farm of about one hundred and twenty acres, situated on the westerly side of the B. river, partly in M. and partly in TJ.; and also of a lot of about four acres, known as the Canal lot, on the same side of the river, and on both sides of the B. canal; ” and in their return to the probate court stated, that they had sold to H. the estate first described in the notice. Their deed to II. purported to convey “ all the right, title, and interest whereof P. died seised and possessed, of, in and to a certain parcel of land and estate, situated partly in M. and partly in U., and on the south-westerly side of the B. river, it being the farm on which P. formerly lived, and which was conveyed to B. by deed of mortgage,” (of which the date, and the book and page of the record, were given, corresponding to the mortgage above mentioned,) “to which reference may be had for a further description of the premises.” It was held, that the deed from P.’s administrators to H. conveyed all P.’s title to the whole estate mortgaged by him to B.
    This was a writ of entry, brought against Welcome Farnum and Francis Deane, Jr., to recover an undivided part of two several tracts of land, situated in Blackstone, formerly Mendon, in the county of Worcester, and called in the writ “ the Dexter Taft lot,” and “ the Canal lot.” At the trial before Fletcher, J., the demandant proved that Esek Pitts died seized of said tracts, and that he was one of said Esek’s children and heirs at law. The tenants pleaded the general issue, and alleged title in themselves, claiming under Esek Pitts, through the following line of title : —
    On the 1st of August, 1834, Esek Pitts mortgaged to Moses Buffum, to secure the payment of $5,000, in five years, with interest semiannually, “ a certain tract of land, [described,] situated in the towns of Mendon and Uxbridge, in the county of Worcester, containing by estimation one hundred and thirty acres, together with the buildings thereon standing,” on the south-westerly side of the Blackstone river, “ for a more particular description of said premises, reference is hereby made to a deed of Area Smith to Esek Pitts, recorded,” &e.: “Also a certain other tract of land, [described,] with a dwelling-house thereon, containing by estimation one fourth of an acre,” [called in the writ “ the Dexter Taft lot,”] “ situated in Mill-ville, so called, in Mendon: Also a certain other tract of land with buildings thereon, containing by estimation five acres,” “ situated in Millville, so called, in Mendon, bounded as follows, to wit: Beginning at a black oak tree on the southerly bank of the Blackstone river, thence easterly to the centre of «aid river, thence turning and running down the centre of said river to land now or formerly owned by Farnum Gifford, thence southerly across the Blackstone canal,” &e., called in the writ “ the Canal lot.” This mortgage was recorded in the registry of deeds for the county of Worcester, book '301, page 291. On the 6th of January, 1838, Buffum made to Charles C. P. Hastings, a conditional assignment of this mortgage, the substance of which assignment is stated in the case of Farnum. v. Metcalf, (post, 46.)
    On the 10th of April, 1838, the administrators of the estate of Esek Pitts presented a petition to the probate court for a license to sell the whole of his real estate for the payment of his debts and charges of administration, on which petition the demandant and other heirs of Esek Pitts assented, in writing, to the sale as prayed for; and the court ordered “ that the petitioners be licensed to sell the whole of the real estate of said deceased, for the purpose of paying debts and charges of administration, as by a partial sale the residue would be greatly injured.” The said administrators gave notice, according to law, that they would sell at public auction, by license of court, “ all the right in equity to redeem three mortgaged real estates, lately owned by Esek Pitts,” “ consisting: First, of a farm of about one hundred and twenty acres, situated on the westerly side of Blackstone river, near the village of Millville, and partly in Mendon, and partly on the southeast corner of Uxbridge, with a large dwelling-house, bam and other out buildings thereon; and also of a lot of about four acres, known as the Canal lot, on the same side of the river, and on both sides of the Blackstone canal, with a large warehouse standing thereon.” The other descriptions of lands in the notice did not apply to the premises now in controversy. The administrators in their return to the probate court, made on the 28th of May, 1839, stated that on the 23d of February, 1839, they sold the estate first described in the notice for $202 to Dan Hill. The deed from said administrators to Hill purported to convey “ all the right, title, and interest, whereof the said Esek Pitts died seized and possessed, of, in and to a certain parcel of land or estate situated partly in said Mendon, and partly in Uxbridge, and on the south-westerly side of the Blackstone river, it being the farm on which said deceased formerly lived, and which was conveyed to Moses Buffum by deed of mortgage bearing date the first day of August in the year 1834, and which is recorded in the registry of deeds in Worcester, book 301, page 291, to which reference may be had for a further description of the premises.” And Hill, on the same day, quitclaimed the estate so conveyed to him, to Buffum.
    Buffum on the 27th of August, 1842, made to Henry S. Mansfield, a mortgage, which, after describing other lands not now in question, proceeded as follows: “Also all my right, title, and interest in two other tracts of land, with the buildings thereon standing, situated in and near said Millville, on the south side of the Blackstone river, a part of one tract being in Uxbridge, and for a more particular description of which reference may be had to a deed from Esek Pitts to me, dated August 1st, 1834, recorded in the registry of deeds for said county, book 301, page 291.” Mansfield afterwards, by mesne conveyances, acquired title on the 28th of June, 1844, to Buffum’s remaining interest in the land so mortgaged; and on the next day, made a mortgage, containing a similar descrip, tion, to Richmond Bullock, who, on the 14th of August, 1847, assigned said mortgage to the tenant Farnum. On the 22d of May, 1845, Mansfield conveyed to Ira M. Barton, by deed of warranty, a part of the canal lot, and Barton on the first of November, 1845, conveyed the same to Farnum.
    The tenant, Deane, claimed title under the attachment, and levy and sale on execution, set forth in the beginning of the opinion in Buffum v. Deane, (ante, 35.)
    There was evidence tending to show that for some years previous to 1828, Esek Pitts lived on the tract of land first described in the mortgage from him to Buffum, and occupied the two other tracts of land described in said mortgage as part of the same farm.
    The presiding judge reserved the case for the consideration of the full court upon a report, the material part of which is above stated.
    
      E. Washburn and P. C. Bacon, for the demandant.
    
      B. F. Thomas, for the tenants.
   Metcalf, J.

The only material question in this case is, whether the deed from Esek Pitts’s administrators to Dan Hill conveyed the premises which the demandant now seeks to recover. Those administrators, with the written consent of the demandant, obtained a license from the probate court, to sell “ the whole of the real estate,” of said Pitts ; and they advertised for sale Pitts’s right in equity to redeem three mortgaged real estates, which were described, and which included the premises now demanded. Their deed to Hill was drawn in very peculiar terms of description. It purported to convey to him, “ all the right, title, and interest, whereof the said Esek Pitts died seized and possessed, in and to a certain parcel of land or estate,” &c. “ it being the farm on which said deceased formerly lived, and which was conveyed to Moses Buffum by deed of mortgage bearing date the first day of August in the year 1834, and which is recorded in the registry of deeds,” &c. “ to which reference may be had for a further description of the premises.” Upon reference to this deed of mortgage, it is found to have been made by Pitts to Buffum, and to have covered three tracts of land described by metes and bounds, and including the two lots demanded in this suit.

The construction of the deed to Hill, which the tenants’ counsel suggests, is this: That taking all the words of description therein, the meaning thereof is, that a certain parcel of land, or a certain estate, being the farm on which Pitts formerly lived, and the estate which he conveyed to Buffum, by mortgage, was conveyed by the administrators. And we cannot doubt that such was the understanding of both parties to the deed. License was granted to sell the whole. The administrators advertised the whole for sale. The whole was mortgaged to secure one single sum. Each lot was held for the full sum so secured. 7 Mass. 358. It, therefore, cannot be supposed that the administrators intended to sell, or that Hill intended to buy, the right to redeem one lot only, which he could not redeem, unless by special agreement with the holder of the mortgage, without paying the whole mortgage debt. Still we must decide this question on the terms of the deed, from which alone its legal effect must be learned. If those terms do not give effect to the parties’ intent, that intent must fail. But we are of opinion that the construction suggested by the counsel for the tenants is the true one, without reference to any supposed intention of the parties, beyond that which is manifested by the deed itself, the mortgage therein referred to for a further description of what was conveyed, and the extrinsic evidence, which the law allows us to receive for the purpose of showing that the demanded premises were used by Pitts, as a part of his farm. See Child v. Ficket, 4 Greenl. 471; Goodlittle v. Southern, 1 M. & S. 299; Allen v. Richards, 5 Pick 512; Roscoe on Ev. 13.

Judgment for the tenants  