In re Buttrick

• Decision Date: 26 February 1904
• Citation: 185 Mass. 107,69 N.E. 1044
• Parties: In re BUTTRICK et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

185 Mass. 107

69 N.E. 1044

In re BUTTRICK et al.

Supreme Judicial Court of Massachusetts, Essex.

Feb. 26, 1904.

Exceptions from Superior Court, Essex County.

Petition by Mary E. Buttrick and others for partition. From the judgment, petitioner brings exceptions. Exceptions overruled.Henry N. Merrill and Boyd B. Jones, for petitioners.

Henry P. Moulton, Robert D. Trask, and Joseph H. Pearl, for respondents.

KNOWLTON, C. J.

This is a petition for partition of two parcels of land in Haverhill, between the Merrimac river and Washington and River streets. They are parts of a lager lot, which formerly belonged to Jacob Ayer, of Haverhill, who died intestate in 1790. The petitioners contend that the premises belonged to Jacob Ayer at the time of his death, and were conveyed at that time by his heirs to one Nathan Ayer, and that they are some of the heirs at law of Nathan. This is their only claim of title. None of the petitioners nor any of their ancestors, so far as appears, was ever in possession of any part of the property. Until within the last 30 years the land had been used as a fishing place, extending for a considerable distance along the shore of the river.

The respondents appeared under Pub. St. 1882, c. 178, § 14 (Rev. Laws, c. 184, § 8), as persons interested in different portions of the premises described in the petition, and severally averred that they were in possession of the portions described in their several answers, and were the sole owners thereof in fee simple, and denied that the petitioners or any of them were seised of the premises or of any part thereof, or entitled to possession, or to maintain their petition. To each of the answers a replication was filed by the petitioners, under Pub. St. 1882, c. 178, § 15 (Rev. Laws, c. 184, § 9), averring that the respondent has no estate or interest in the premises, and praying judgment if he shall be admitted to object. The case was referred to an auditor, who filed an elaborate report, and it was then heard before a justice of the superior court without a jury. It was found by the auditor that the lands are now nearly all occupied with buildings, and that they had been in the possession of the several respondents and those under whom they claim for nearly 20 years before the bringing of this petition, and more than 20 years before the trial, subject to a question as to the effect of a writ of entry now pending, brought December 24, 1889, by all but one of the petitioners against one of the respondents, to recover one of the parcels. In addition to their claim of a title by adverse possession, the respondents set up a deed made by the guardian of Jacob Ayer, dated December 25, 1776, whereby he conveyed the premises under authority of the court to John Mulliken, Nathaniel Marsh, and Bailey Bartlett, all of Haverhill. Jacob Ayer was then insane, and afterwards remained so as long as he lived. This deed was introduced, not as showing title in the respondents, but to show that Jacob Ayer did not own the property at the time of his death, and that therefore the petitioners acquired no title under the deed from his heirs to their ancestor, Nathan Ayer. The auditor and the judge found in accordance with the contention of the respondents in this particular.

At the trial, after the evidence had all been heard, the petitioners, under their replications, asked the court to rule that the respondents have no interest in the premises within the meaning of Pub. St. 1882, c. 178, §§ 14, 15 (Rev. Laws, c. 184, §§ 8, 9), and that they are not entitled to object to the partition. This request raises the first question for our consideration.

1. The interest of the respondents, as disclosed by the evidence, was that of persons in possession who had erected buildings and made other valuable improvements, and who had been in possession nearly 20 years when the petition was brought, and more than 20 years at the time of the trial. The auditor's report indicates that each of the later occupants held the property ‘under a title which he believed to be good,’ and that he therefore comes within Pub. St. 1882, c. 178, § 31 (Rev. Laws, c. 184, § 19).

The purpose of section 15 seems to be to relieve petitioners from the necessity of a trial upon objections made by persons not named in the petition as respondents, if it appears that they have no estate or interest in the lands. For that purpose there may be a preliminary hearing to determine whether the person appearing has an interest. If the whole case is heard, and the evidence concluded upon all questions affecting the rights of the petitioners and the respondents, the reasons for this provision are no longer applicable. Whether one holding a mere possessory title of recent origin should be deemed to have an interest under this section is a question not free from difficulty, and which it is not necessary in this case to decide. As was side by Chief Justice Shaw in Marshall v. Crehore, 13 Metc. 462, 467, a petition for partition is made by our statutes ‘to a much greater extent than formerly an adversary proceeding to try and decide controverted questions of title.’ The case of Cook v. Allen, 2 Mass. 462, which was decided under the statutes of March 11, 1784, and February 14, 1787, holds that one claiming a title by disseisin is a proper party to such a proceeding. See, also, Munroe v. Luke, 19 Pick. 39. There are peculiar reasons why one who has made improvements, holding under a title which he believes to be good, ought not to be refused an opportunity to be heard. Under section 31, above referred to, he is not only entitled to receive compensation for his improvements, but he is liable for the petitioner's share of the rents and profits, and these are to be ascertained in the suit. The proceedings in the present case would make this section applicable if the petitioners' evidence entitled them to a decree for partition.

The case of Tilton v. Palmer, 31 Me. 486, relied on by the petitioners as tending to show that the respondents ought not to be heard, is an adjudication in a different form of proceeding. It is under a statute which makes a different kind of provision as to compensation for improvements and liability for rents and profits, and it is materially modified by the later cases of Saco Water Power Company v. Goldthwaite, 35 Me. 456;Brackett v. Persons Unknown, 53 Me. 238, 87 Am. Dec. 548; and Richardson v. Watts, 94 Me. 476, 48 Atl. 180.

The general rule is that a person having title by disseisin cannot be disturbed in his possession except by one who shows a better title. In a case like the present, when upon a full trial of the case it appears that the petitioners have no title, nor any right to possession, it would be a gross injustice to give them a decree for partition, and compel the respondents to have the value of their improvements estimated, and to pay the petitioners their share of the rents and profits. Even under the decisions in Maine relied on by the petitioners, it is plain that all of the respondents but one are entitled to be heard, and to rely upon the petitioners' want of title as a defense; for it is held in those cases that if the possession is continued more than 20 years before the trial it ripens into a perfect title, even though the petition was brought before the expiration of the [185 Mass. 111]20 years. This doctrine is plainly applicable to all the respondents but one. As to that one, it is said that the bringing of a writ of entry before the 20 years interrupts his possession and defeats his title. This would be true if the writ had been prosecuted to a judgment in favor of the demandants. But when it appears, as it does upon the proof in this case, that the suit cannot be maintained, and that the tenant must ultimately prevail, no such effect can be given to the bringing of a writ of entry. We are of opinion that there was no error in the refusal of this ruling.

2. The deed from the guardian of Jacob Ayer to John Mulliken and others was a very ancient deed, and it was found in the possession of an heir of one of the grantees. Moreover, the various records from the probate court tend to show that the possession and claim of title of the parties to it was for a long time in conformity with it. Under such circumstances, an ancient deed may be admitted in evidence without formal proof of its execution. Phillips v. Watuppa Reservoir Company (Mass.) 68 N. E. 848, and cases there cited; Stockbridge v. West Stockbridge, 14 Mass. 257;Green v. Chelsea, 24 Pick. 71. In the year 1896 this deed was proved before the probate court in accordance with Pub. St. 1882, c. 120,...