Anthony v. New York, P. & B.R. Co.

• Citation: 162 Mass. 60,37 N.E. 780
• Parties: ANTHONY et al. v. NEW YORK, P. & B.R. CO.
• Decision Date: 28 June 1894
• Court: United States State Supreme Judicial Court of Massachusetts

162 Mass. 60

37 N.E. 780

ANTHONY et al. v. NEW YORK, P. & B.R. CO.

Supreme Judicial Court of Massachusetts, Worcester.

June 28, 1894

COUNSEL

F.P. Goulding and Wm. G. Roelker, for plaintiffs.

William A. Gile and George F. Hoar, for defendant.

OPINION

FIELD C.J.

The plaintiffs were lessees of land and buildings under a lease for a term of 10 years from the making thereof, and the lease, at the time it was admitted in evidence, had not been recorded. During the arguments at the trial, the lease was entered for record in the proper registry of deeds. The term expired on October 14, 1893, and the fire occurred in April 1891, so that, at the time of the fire, there remained of the term nearly 18 months. The contention of the defendant is that the lease was not evidence of any title in the plaintiffs, as against the defendant, because, being unrecorded, it was void, under Pub.St. c. 120 § 4. We understand that it was not disputed that the plaintiffs were in actual possession under the lease at the time of the fire. Pub.St. c. 120, § 4, was not intended to protect persons who claim no right, title, or interest in the premises conveyed by the unrecorded deed. That such a deed conveys the title as between the parties is clear. Dole v. Thurlow, 12 Metc. (Mass.) 157; Earle v Fiske, 103 Mass. 491; Smythe v. Sprague, 149 Mass. 310, 21 N.E. 383. The cases which hold that a deed may be received in evidence if it is recorded after action brought, and before the trial, must proceed upon the ground that the delivery of the deed passed the title as between the parties to it, although the parties to the suit may not be the same as the parties to the deed. It seems to have been regarded as a rule of practice that the deed must be recorded at some time in order to be admissible in evidence. Wolcott v. Winchester, 15 Gray, 461, 467; Howland v. Crocker, 7 Allen, 153. See Palmer v. Paine, 9 Gray, 56; Burghardt v. Turner, 12 Pick. 534. In Estes v. Cook, 22 Pick. 295, there was no evidence of any actual possession of the lots by the plaintiff, and the ruling was that an unrecorded deed of wild land is not of itself sufficient evidence of possession by the grantee to entitle him to maintain trespass quare clausum against a third person. See Bates v. Norcross, 14 Pick. 224; Kellogg v. Loomis, 16 Gray, 48; Perry v. Weeks, 137 Mass. 584. In the present case the defendant did not justify on the ground that it was the owner of or had any interest in the property covered by the lease. The plaintiffs were in actual possession. Actual possession of real property, under a claim of right, is a sufficient foundation for an action of trespass so far as injury to the possession is involved in the suit. In this case the buildings were destroyed, and the extent of the plaintiffs' title was material on the question of damages. The only interest of the defendant in having the lease recorded, if it has any interest, is that it may be protected against suits by other persons to whom the lessors may have conveyed the premises before the fire without notice of the lease, and who may put their conveyance on record before the lease has been recorded. If the lease is recorded before the trial is finished, or perhaps even before judgment is rendered in the suit, and there is no intervening title of record, we think that the defendant is protected; and, if the rule of evidence which has been heretofore adopted is to be applied to such a case as the present, we think it was satisfied by recording the lease during the arguments.

The principal question in the case is whether the plaintiffs are entitled to recover the full value of the building burnt, or whether their damages are to be confined to the injury to their possession during the unexpired term of the lease, leaving to the lessors a right of action to recover for the injury to the reversion. The general rule of the common law is that, when real property is permanently injured, the tenant in possession for life or a term of years and the reversioner each has a cause of action to recover damages according to the extent of the injury to the estates of each. The lease in this case contained the following stipulations: "And, in addition to the rents to be paid as aforesaid, the said party of the second part agrees to keep all the said buildings, appurtenances, and improvements in good repair, and also to maintain an amount of insurance upon all of said buildings sufficient to repair, or replace them in case of destruction or damage by fire, said repair and insurance to be at the cost of said party of the second part; and it is expressly understood and agreed by said party of the second part that, if any building shall be destroyed or damaged by fire, it shall be rebuilt or repaired by said party at once, unless this requirement shall be waived by the party of the first part, in which case all moneys received by and in the hands of the party of the second part for insurance on the damaged or destroyed property shall be promptly paid to said party of the first part, their heirs or assigns. If said party of the second part shall desire to alter or remove any building, appurtenances, or improvements on said premises, or to place any new building, appurtenances, or improvements upon the same, it shall be lawful and proper to do so, provided that all such operations shall in no wise impair the value of said premises, its buildings, appurtenances, and improvements, as they now exist." The defendant, if liable at all, is liable for the whole damage to the property, and these damages cannot be increased or diminished by reason of any contracts between the lessors and the lessees. Burt v. Insurance Co., 115 Mass. 1. The part of the property burnt, in which the lessors as well as the...