Arnold v. Reed

• Decision Date: 30 November 1894
• Citation: 38 N.E. 1132,162 Mass. 438
• Parties: ARNOLD et al. v. REED et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

162 Mass. 438

38 N.E. 1132

ARNOLD et al. v. REED et al.

Supreme Judicial Court of Massachusetts, Plymouth.

November 30, 1894

COUNSEL

Cook &amp Coughlan, for plaintiffs.

OPINION

FIELD C.J.

The question in this case is whether the petitioners allege and show a "record title" to real property described in the petition, within the meaning of these words in St.1893 c. 340. ^[1] The deeds of Charles Stetson to the petitioners Nathaniel W. Arnold and Justin Meserve, and to Leonard Arnold, who has deceased, and whose heirs join in the petition, purport to be given by said Stetson as administrator of the estate of Josiah Shaw, deceased, late of Abington, in the county of Plymouth, under an order of the probate court for the county of Plymouth, whereby he was licensed and empowered to sell and convey the real estate of such deceased, etc. These deeds are substantially in the usual form of deeds by executors and administrators licensed by a probate court to sell real estate in order to pay debts and legacies. The petition alleges that said Shaw died seised and possessed of said real estate, in fee, and devised the same to his heirs at law; that Stetson was duly appointed administrator of his estate, with the will annexed; that on October 15, 1870, Stetson sold the property at public auction, claiming to act under a license of the probate court; that the purchasers, or those claiming under them have been in occupation ever since; but that "said Stetson, who is now deceased, had no license, power, or authority, either under the will of said Josiah Shaw, or from said probate court, to sell any of the lands of which said Shaw died seised and possessed, nor was the condition of said Josiah Shaw's estate such as to authorize said probate court to issue license for the sale of any part of the real estate thereof."

On the face of the record of the registry of deeds, if the recitals in the deeds given by Stetson are taken to be true, the deeds conveyed a good title; but in fact the recitals are not true and this would appear by an examination of the records of the probate court. The probate courts are courts of record. Pub.St. c. 156, §§ 1, 27. Deeds may convey a good title, which yet does not appear of record anywhere. The heirs of deceased persons usually do not appear of record anywhere. Title by adverse possession usually does not appear of record. A forged deed conveys no title, although, if executed in the name of the record owner, it appears on the face of the record to convey a title. A deed executed by an attorney, if the power of attorney is not recorded, conveys no title of record; yet, if the attorney is authorized in fact, his deed conveys the title, as between the parties. It is to be noticed that St.1893, c. 340, repealed Pub.St. c. 176, where the language was broader, and was not confined to a record title, and that it adopted in this respect the...