Currier v. Esty

• Decision Date: 29 January 1875
• Citation: 116 Mass. 577
• Parties: George A. Currier v. Jeremiah A. Esty
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

116 Mass. 577

George A. Currier v. Jeremiah A. Esty

Supreme Court of Massachusetts

January 29, 1875

Essex. Tort for breaking and entering the plaintiff's close ploughing up the soil and taking away and converting certain trees and shrubs of the plaintiff. Trial in the Superior Court, before Wilkinson, J., who allowed a bill of exceptions in substance as follows:

The plaintiff introduced in evidence a deed of the premises described in his declaration, from one Proctor to himself. He also offered evidence of possession under the deed, and evidence tending to prove that the defendant entered upon the premises, and committed the acts alleged in the declaration.

It appeared in the case, and was not controverted, that in 1866 the defendant commenced a real action against the plaintiff in which he claimed, with other land, the locus described in this declaration; that the plaintiff filed a disclaimer to the locus, and judgment was rendered upon said disclaimer in 1868; and that subsequently, in 1871, the plaintiff brought a bill in equity against the defendant, to enjoin him from using or setting up said judgment or disclaimer as any evidence of title. Upon the filing of said bill, a temporary injunction issued, "as prayed for," to continue until the further order of said court. The bill in equity went on to final hearing, and was decided by the full court in 1873, by whose rescript a "decree for the plaintiff with costs" was ordered to be entered.

The defendant then offered in evidence the disclaimer of the plaintiff in the real action, so far as related to that part of the locus in question upon which the alleged trespass was committed, as a declaration in pais for the purpose of showing the circumstances under which the defendant entered upon the said locus, and stated to the court that the disclaimer was not offered either as an estoppel or bar to the plaintiff's title to the premises described in his writ, or as evidence of title in the defendant. But the judge ruled that the pleadings in that case were not competent evidence for any purpose.

The defendant then asked the judge to rule that, the property having become vested in him by operation of law in consequence of the aforesaid judgment in the real action, the plaintiff could not maintain this action against him; that if the defendant entered upon the locus by reason of the law vesting the property in him, and forcibly withheld possession from the plaintiff, then the plaintiff's remedy was by action of forcible entry and detainer, and not tort in the nature of trespass quare clausum. But the judge...