Whitney v. Holmes
Massachusetts Supreme Judicial Court
This was trespass quare clausum fregit. The soil and freehold of the defendant being traversed, a trial was had, at the last October term in this county, before Thatcher, J. The plaintiff and defendant were owners of adjoining tracts of land, and a dispute existed as to the dividing line between them.
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This was trespass quare clausum fregit. The soil and freehold of the defendant being traversed, a trial was had, at the last October term in this county, before Thatcher, J. The plaintiff and defendant were owners of adjoining tracts of land, and a dispute existed as to the dividing line between them. The plaintiff having produced in evidence an agreement, subscribed by him and the defendant, the object of which was that the line should be surveyed and run by three persons, whom they had selected for the purpose; and in which both agreed that the survey to be so made should be decisive; and…
1Opinion of the CourtParker, C. J.
The question in this case is, whether the agreement, signed by the defendant, creates a legal impediment to the introduction of the evidence offered by him at the trial. In order to give it this effect, it should appear that the agreement operated as a conveyance of the defendant’s soil to the plaintiff— which cannot be pretended, for no estate can pass, according to our statutes, but by deed: or it must have amounted to an estoppel, which has not been insisted upon; no man being barred of his right, by way of estoppel, but by record or deed. How, then, does it operate ? It seems to be…
2Cited by16 opinions
- Cook v. StearnsMassachusetts Supreme Judicial Court · 1814
- Rorer Iron Co. v. TroutSupreme Court of Virginia · 1887
- Shelton v. AlcoxSupreme Court of Connecticut · 1836
- Commonwealth v. MoltzSupreme Court of Pennsylvania · 1849
- King v. WilcombNew York Supreme Court · 1849
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