Duff v. Leary

• Decision Date: 06 April 1888
• Citation: 16 N.E. 417,146 Mass. 533
• Parties: DUFF et al. v. LEARY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

146 Mass. 533

16 N.E. 417

DUFF et al. v. LEARY.

Supreme Judicial Court of Massachusetts, Suffolk.

April 6, 1888

COUNSEL

A. Hemenway and C.G. Keyes, for demandants.

It is submitted that the facts do not show that the possession or occupancy of the tenant was actual, open, exclusive, and adverse, and under a claim of right. See Cook v Babcock, 11 Cush. 206; Iron-Works v. Wadhams, 142 Mass. 570, 9 N.E. 1. It is apparent that John Duff was all along providing a home for and supporting his sisters and relatives in the house. His bounty extended to them all. Aside from the mere occupancy of the premises by the tenant and her family, and his sisters, John Duff exercised every act of ownership and control over the premises that any owner could. The tenants' possession and occupancy were in subordination to John Duff. The evidence does not warrant a finding that the tenants' occupancy was exclusive. The evidence does not tend to show that John Duff supposed or believed he had parted, or intended to part, with the estate or its control by a mere parol gift. On the contrary, all the acts of John Duff disclosed by the evidence tend to show that he always treated the estate as his own, simply allowing his relatives to live there, paying all bills about the house and supporting them all while living in the house. Silva v. Wimpenney, 136 Mass. 253; Hawk v. Senseman, 6 Serg. & R. 21; 2 Smith, Lead.Cas. (5th Amer.Ed.) 561-567; Cook v. Babcock, 11 Cush. 206; 2 Greenl.Ev. § 557; Arnold v. Stevens, 24 Pick. 106; Hunt v. Hunt, 3 Metc. 175. The case is distinguishable from Sumner v. Stevens, 6 Metc. 337, and Motte v. Alger, 15 Gray, 322. The statements and declarations made by John Duff, at different times between 1860 and his death, as to his ownership of said house, and as to how his relatives occupied, and especially the statement or entry in the book produced, and the statement to W.C. Cutter, were admissible as tending to show a continuous and apparently fixed state of mind and purpose inconsistent with, and tending to disprove, the alleged gift, or as declarations accompanying acts of ownership and dominion. Whitney v. Wheeler, 116 Mass. 491; Whitwell v. Winslow, 132 Mass. 307; Wright v. Boston, 126 Mass. 161; Stevens v. Miles, 142 Mass. 571, 8 N.E. 426.

S.J. Thomas and J.A. Maxwell, for tenant.

The jury were warranted in finding as they did. Sumner v. Stevens, 6 Metc. 337; Motte v. Alger, 15 Gray, 322, (see especially pp. 327, 328.) The letter of Mrs. Manning was no evidence of the truth of the assertions contained in it, and was competent, if at all, merely as the act of a party in possession of a part of the premises. If the demandants thought the verdict against the weight of the evidence, they had their remedy by motion for a new trial, and the docket of the superior court shows that this remedy was sought by them. It appears that the demandants offered in evidence certain declarations of their ancestor, John Duff, which declarations were excluded, and demandants excepted to their exclusion. They were clearly incompetent whether offered to contradict the alleged gift, or as declarations accompanying acts of ownership,--not as declarations accompanying acts of ownership, because they were not made on the land; and, even if made on the land, they were not competent, for they were not in disparagement, but in assertion, of his apparent title, (Osgood v. Coates, 1 Allen, 77; Morrill v. Titcomb, 8 Allen, 100; Ware v Brookhouse, 7 Gray, 454; Currier v. Gale, 14 Gray, 504;) nor as tending to show a state of mind inconsistent with an oral gift of the land in 1860. The intention of John Duff when he used words which his niece, the tenant, construed as words of gift, is entirely immaterial. The gift, if gift there was, was complete in March or April, 1860. The declarations offered were not made prior to 1860, and not made during 1860. Kimball v. Leland, 110 Mass. 325. The declarations must have preceded or accompanied the alleged gift, or immediately subsequent thereto, in order to be competent. Whitney v. Wheeler, 116 Mass. 490; Whitwell v. Winslow, 132 Mass. 307. See Scott v. Bank, 140 Mass. 157, 2 N.E. 925. It seems that subsequent declarations, in order to be competent, must have been so immediately subsequent as to be in fact a part of the transaction, or res gestae. White & T.Lead.Cas.Eq. (5th Ed.) 249, 250, and numerous cases cited. Besides, if land could be conveyed in Massachusetts by oral gift, the rule must apply to oral as to written grants that no declaration of the grantor subsequent to the grant, and not in the presence of the grantee, would be admissible in disparagement of the grant. Chase v. Horton, 143 Mass. 118, 9 N.E. 31. The preceding argument and citations also apply to, and dispose of, so much of the demandants' exceptions as relate to the exclusion of John Duff's memorandum book, and the exclusion of his statement to Cutter.

OPINION

KNOWLTON J.

The dwelling-house which constitutes the demanded premises became the property of John Duff by a deed dated April 30, 1859. He died October 26, 1880, and the demandants are two of his children, who hold under his will, and by a deed from their brother, John R. Duff, the title which he had at the time of his death. They are entitled to recover unless the tenant has acquired title by adverse possession.

She testified, and introduced to corroborate her the testimony of her brother and sister, that John Duff, who was her mother's brother, made to her a parol gift of the demanded premises in the spring of 1860, and that she, and her father, and mother, and brother, and sister immediately moved into the house, and that she has been in occupation as owner ever since. If the gift was made as she testifies, it was ineffectual to change the ownership of the property. She therefore rests her claim of title upon an alleged disseizin and adverse possession. The principal question before us is whether there was evidence to warrant the jury in finding in her favor upon this claim. The evidence in relation to the gift is immaterial except as it bears upon the character of her occupation. Both parties must be presumed to have known that the legal title remained in John Duff, and her subsequent acts must be scrutinized to see whether they constituted actual, open, exclusive, and adverse possession of the real estate for 20 years or more. Sumner v. Stevens, 6 Metc. 337; Motte v. Alger, 15 Gray, 322. In the language of the bill of exceptions, "it appeared, or was admitted, that the taxes on the premises were regularly assessed to John Duff from 1859 to his death, and paid by him, and since his death to his heirs, and paid by them; that the said John Duff kept the house insured against fire in his own...