Co-Operative Bldg. Bank v. Hawkins

• Decision Date: 07 July 1909
• Citation: 30 R.I. 171,73 A. 617
• Parties: CO-OPERATIVE BLDG. BANK v. HAWKINS.
• Court: Rhode Island Supreme Court

73 A. 617

30 R.I. 171

CO-OPERATIVE BLDG. BANK

v. HAWKINS.

Supreme Court of Rhode Island.

July 7, 1909.

Exceptions from Superior Court, Providence and Bristol Counties; George T. Brown, Judge.

Action by the Co-operative Building Bank against Emma A. Hawkins in trespass for breaking and entering plaintiff's close. Verdict for plaintiff, and defendant brings exceptions. Sustained.

Dexter B. Potter, Alfred S. Johnson, and Arthur P. Johnson, for plaintiff.

James A. Williams, for defendant.

SWEETLAND, J. It appears from the testimony: That on February 1, 1891, one Annie Campbell was the owner of a tract of land on the westerly side of Main street, near Dudley street, in the city of Pawtucket. That said tract measured 200 feet on said Main street and extended westerly 463 feet to land of one H. Conant, on which land of Conant it measured 179 feet. So far as appears from the testimony, said tract had not been platted into lots. On said February 1, 1894, the said Annie Campbell was erecting a dwelling house upon said tract near its southwest corner. On said February 1, 1894, said Annie Campbell mortgaged a portion of said tract to this defendant, Emma A. Hawkins, as security for a negotiable promissory note for the sum of $1,800. Duncan H. Campbell, the husband of said Annie Campbell, joined with her in said mortgage deed and note. The portion of said tract mortgaged to Emma A. Hawkins was described in said mortgage deed as "a certain lot or parcel of land, situated in the city of Pawtucket, bounded and described as follows: Beginning at a point about 315 feet distant from Dudley street and 303 feet distant from Main street, said land runs westerly, bounded northerly by land of these grantors, 100 feet, to the land of H. Conant; thence southerly, bounded westerly by said Conant land, 50 feet, to a corner; thence, turning at right angles, said land runs easterly, bounded southerly by land of these grantors, 100 feet to a corner; thence, turning at right angles, said land runs northerly, bounded easterly by land of these grantors, 50 feet, to the first-mentioned bound—together with all the buildings and improvements thereon, and is a part of the premises conveyed to Annie Campbell by deed from Mary A. Sullivan, dated May 3, 1889, and recorded in Pawtucket records in B 50, p. 115, to which reference is hereby made." Said mortgage deed from Duncan H. and Annie Campbell to Emma A. Hawkins was recorded in the land records of Pawtucket on February 2, 1894.

It appears from the testimony that at the time of said mortgage said lot therein described was not marked by bounds placed upon the land, by fences, or in any other manner. On April 18, 1894, the said Annie Campbell mortgaged the whole of said tract to the plaintiff in this case, the Co-operative Building Bank, for the sum of $14,000. The said Duncan H. Campbell joined in the mortgage deed and note. The mortgage to the Co-operative Building Bank was recorded in the land records of Pawtucket on May 15, 1894. On July 15, 1896, to prevent the commencement of foreclosure proceedings, which for some reason she did not wish to have taken, the said Annie Campbell, then a widow, conveyed by deed to Myron H. Hawkins, for Emma A. Hawkins, the premises described in the mortgage deed to Emma A. Hawkins; and thereupon, on said July 15, 1896, the said Myron H. Hawkins, for Emma A. Hawkins, took possession of certain land upon said tract, including a part of the land which the plaintiff alleges in its declaration to be its close, and including the whole of the dwelling house, which, as before stated in this opinion, was in process of erection on February 1, 1894, and continued in possession of said land and said dwelling house until October 22, 1906. On April 14, 1897, the said Emma A. Hawkins, to protect her interest, foreclosed the premises described in the mortgage deed to her, and as attorney for the mortgagor conveyed said premises to herself by mortgagee's deed. On November 20, 1897, the Co-operative Building Bank foreclosed the said mortgage of Duncan H. and Annie Campbell to it, and as attorney for the mortgagor conveyed said tract in said mortgage described to itself by mortgagee's deed. On December 27, 1897, the said Co-operative Building Bank conveyed the entire tract, described in said mortgage and in said mortgagee's deed to it, by deed to one Blodgett, and on the same day the said Blodgett gave to said Co-operative Building Bank a mortgage back upon said entire tract. On March 13, 1901, having foreclosed the mortgage of said Blodgett to it, the Co-operative Building Bank, as attorney for the mortgagor, conveyed the entire tract to itself by mortgagee's deed.

In February, 1903, the plaintiff, the Cooperative Building Bank, proceeded to plat said tract into streets and lots, and attempted to apply to said land the description of the lot contained in the mortgage deed of Duncan H. and Annie Campbell to Emma A. Hawkins; and in so attempting to apply said description to the land the plaintiff took as the place of beginning, as the northeast corner of said lot, a point exactly 363 feet west of Main street and exactly 315 feet south of Dudley street, in said Pawtucket, and the plaintiff has so delineated a certain lot as the lot of the defendant, Emma A. Hawkins, upon its plat, which said plat was recorded in the land records of said Pawtucket on March 25, 1903. Under the construction of said description so adopted by the plaintiff, the dwelling house, before referred to, extends beyond the lines of said lot and onto land which the plaintiff alleges in its declaration to be a part of its close: said extension being more than 7 feet along the south side of said house and about 7 feet along the east side of said house. On February 13, 1903, the defendant, Emma A. Hawkins, having been informed of the claims of the plaintiff as to the location of said dwelling house with reference to the lines of her said lot, joined with her husband in a bill in equity against the Co-operative Building Bank, drawn by a solicitor other than her attorney in the case at bar, and filed the same in the appellate division of the Supreme Court. Said bill was signed by said Emma A. Hawkins and her husband, but was not sworn to by either. Said bill averred the ownership by said Emma A. Hawkins of the lot described in the mortgagee's deed to her, and the ownership by the Co-operative Building Bank of the remainder of said tract, and further averred that "at about the time said mortgage deed was given by Duncan H. Campbell and Annie Campbell to said Emma A. Hawkins, a dwelling house, a barn, and other improvements were erected upon the land in question in this suit, and these buildings were so placed upon said property that the southerly portion of the barn projects beyond the lot included in the mortgage to said Emma A. Hawkins about 1 1/3 feet its entire length, and the southerly portion of the dwelling house projects about 7 1/4 feet at the front and nearly 8 feet at the rear, * * * and practically all of the piazza across the front of the house and the front steps are not upon the land included in the mortgage and deed to Emma A. Hawkins." The complainants in said bill also averred that the Co-operative Building Bank at that time threatened to cut off "so much of said buildings and improvements as are not upon the land described in the deed to Emma A. Hawkins, or to barricade that portion of the buildings so that they cannot be used by tenants and occupants of the other portions of said buildings." In said bill the complainants sought by way of relief that the court in equity should order the sale of all the property referred to in the mortgagee's deed to Emma A. Hawkins and so much of the adjoining land of the respondent in said bill as should justly and fairly be sold, and to have the proceeds of such sale and also the amounts theretofore collected by Emma A. Hawkins as rentals upon said property apportioned between Emma A. Hawkins and the respondent in the bill in such proportion as the court shall determine to be just and equitable. A demurrer to said bill in equity was sustained, and said bill was afterwards ordered transmitted to the superior court, and is now pending in said court.

At some time between October 22, 1906, and November 22, 1906, by direction of said plaintiff, Emma A. Hawkins, said dwelling house was moved from its position at that time and placed within the lines of the lot delineated as her lot on the plat of the plaintiff. On December 11, 1906, the plaintiff at bar commenced this action in trespass against the defendant, and its declaration alleges, in four counts, slightly differing in language, that the defendant broke and entered its close and with force and arms by her servants and agents raised from their foundations and removed from said close a portion of a dwelling house and a portion of another building which were standing upon said close and were the property of the plaintiff. The defendant pleaded the general issue, and also that at the time of bringing the suit the defendant had been for the space of more than 10 years in the uninterrupted, quiet, peaceable, and actual seisin and possession of the dwelling house and other building described in the declaration, and the land upon which said dwelling house and other building stood during all of said time, claiming the same as her own proper, sole, and rightful estate in fee simple, by reason whereof said defendant acquired a good and rightful title to said dwelling house and other building and the land upon which the same stood.

At the trial of said action before a Jury in the superior court the justice presiding instructed the jury that the only question for them to determine was as to the amount of the plaintiff's damages. The jury returned a verdict for the plaintiff for $682. The defendant filed a motion for a new trial on the ground that the verdict in said case was against the evidence and the weight...