Dow v. Dow

• Decision Date: 22 January 1923
• Citation: 137 N.E. 746,243 Mass. 587
• Parties: DOW v. DOW.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

243 Mass. 587

137 N.E. 746

DOW

v.DOW.

Supreme Judicial Court of Massachusetts, Essex.

Jan. 22, 1923.

Exceptions from Superior Court, Essex County; Robert F. Raymond, Judge.

Writ of entry by Arthur M. Dow against Herbert A. Dow, in which an issue as to adverse possession was tried in the superior court. Verdict for the tenant, and demandant brings exceptions. Exceptions overruled in part, and sustained in part.

The facts as to the adverse possession are stated in the opinion. The demandant excepted to the exclusion of testimony that Melvin Dow's sister, now deceased, some years before the action, told the witness that Melvin had told her that he had paid Herbert all he owed him on account of the woodland. The court excluded the evidence, on the ground that it was the statement of adeceased person of what another deceased person had said. The demandant requested eight rulings, and excepted to the refusal of those not given. In a colloquy between court and counsel, in passing on the requests for rulings, the court stated that the jury should take into consideration all of the things, and say whether or not they constituted ‘such a claim as manifested itself during 20 years to constitute adverse possession,’ and refused the fourth request, ‘unless you cover those in your question,’ and defendant excepted. The rulings refused were as follows:

[243 Mass. 588]4. Where land is such as has been testified to here on the part of the tenant, woodland, without buildings, uncultivated, open, and uninclosed, except for fences not erected and maintained by the tenant, the cutting of wood for use and sale from time to time and doing of the things testified to on behalf of the tenant are not such acts as would give title.

5. That there can be no adverse use of such wild land or woodland as is here described by the witnesses, through the cutting of wood and timber, or doing any other acts which it has been testified have been done by Herbert A. Dow in respect to the premises.

6. That, even if such acts on the parcels of woodland here sued for could be acts of adverse possession, that similar acts on the part of S. Melvin Dow would prevent the accruing of title by possession.

7. That the doing of such acts by both Herbert A. Dow and S. Melvin Dow, or their authority, would not give title by possession.

8. That in regard to wild lands and woodlands the cutting of wood from time to time and selling the same is not to establish a title; that there must be a distinct and well-defined possession and occupation thereof, as by inclosing the land with a fence, or by similar acts done under such circumstances that they indicate that the possession taken is open, exclusive, and of such character that it is clearly inconsistent with and adverse to title in any other person.Ernest Foss, of Newburyport, for tenant.

T. S. Herlihy, of Newburyport, for demandant.

CROSBY, J.

The demandant brought a writ of entry in the land court in 1918 to recover possession of three parcels of land. The tenant claims title by virtue of a sheriff's deed given to him in 1889 and also by adverse possession. The following issue was framed in the land court and tried in the superior court:

‘Has the tenant acquired title by adverse possession to any portion of the demanded premises, and, if so, to what portion?’

The jury found for the tenant as to each of the parcels. At the close of the evidence the demandant moved that a verdict be directed in his favor as to each of the lots in question; the motion was denied and the demandant excepted. He also excepted to the admission and exclusion of certain evidence, and to the refusal of the court to make certain rulings and give certain instructions.

There was offered in evidence, subject to the demandant's exception, a sheriff's deed to the tenant of the lots in question; the deed was admitted to show color of title and the extent of the property claimed by adverse possession. It was competent for that purpose. The tenant was entitled to show that he had entered into possession of the land described in the deed under a claim of right.

It is settled that where a person enters upon a parcel of land under a color of title and actually occupies a part of the premises described in the deed, his possession is not considered as limited to that part so actually occupied but gives him constructive possession of the entire parcel. The entry is deemed to be coextensive with the grant upon the ground that it is the intention of the grantee to assert such possession. Boston v. Richardson, 105 Mass. 351, 371, 373;Murphy v. Commonwealth, 187 Mass. 361, 73 N. E. 524;Smith v. Gal., 144 U. S. 509, 525, 526, 12 Sup. Ct. 674, 36 L. Ed. 521. See also cases cited in notes, 2 Corpus Juris, p. 235.

The principle as above stated, however, applies only when there has been an entry of disseizin upon a single parcel of land, and is not applicable to include the three separate and not contiguous parcels described in the sheriff's deed, on only one of which an entry has been made. The entry upon and actual possession of one parcel will not thereby give constructive possession of the others where, as in the case at bar, the parcels are not contiguous, but separate and distinct from each other. Farrar v. Eastman, 10 Me. 191; Hornblower v. Banton, 103 Me. 375, 69 Atl. 568,125 Am. St. Rep. 300;Brown v. Bocquin, 57 Ark. 97, 20 S. W. 813;Georgia Pine Investment & Manuf. Co. v. Holton, 94 Ga. 551, 20 S. E. 434;Stephenson v. Doe, 8 Blackf. (Ind.) 508, 46 Am. Dec. 489;Burt & Brabb Lumber Co. v. Sackett, 147 Ky. 232, 144 S. W. 34;Morris v. McClary, 43 Minn. 346, 46 N. W. 238; Wilson v. McEwan, 7 Or. 87, 107.

It follows that the deed was admissible to prove the nature of the tenant's claim, and to show color of title, and therefore constructive possession of the lot, upon which an entry had been made and actual possession taken.

It is the contention of the demandant that the evidence is insufficient to warrant a finding that the tenant is the owner of any of these parcels in controversy. The lots were as follows: One of woodland containing about seven acres; one of sprout land of about five acres. These lots were conveyed to S. Melvin Dow by Moses T. Dow by deed dated January 27, 1875. The third lot was marsh land, devised to Melvin under his grandmother's will, containing about four acres.

S. Melvin Dow died March 28, 1916, intestate, leaving the demandant, his son, as his only heir at law and next of kin, and who is entitled to possession of the lots demanded unless the tenant has become the owner thereof by adverse possession. The tenant is the uncle of the demandant. There was evidence that the tenant purchased the various parcels at a sheriff's sale on an execution against Melvin and received a deed therefor dated June 10, 1889; that thereafter he saw Melvin and told him that he had bought the property; that three or four years afterwards Melvin came to live with the tenant and remained with him for six or seven years; that he then went to live with his brother Moses in the next house to that of the tenant and remained there until he died; that the tenant and Melvin discussed the sale several times; that the latter told the tenant that he was glad he (the tenant) had bought the property and wanted Herbert to promise to keep it for him until he should take it back; that Herbert told him he was willing he should do so at any time; that the tenant paid the taxes for seven or eight years; that later Melvin told Herbert that the latter was not getting much income from the property, and that he (Melvin) would pay the taxes; that he did so from that time until his death; that he never reimbursed the tenant for what he had paid and no deed was ever given. There was also evidence that there was...