Kerslake v. Cummings

• Citation: 61 N.E. 760,180 Mass. 65
• Parties: KERSLAKE et al. v. CUMMINGS et al.
• Decision Date: 20 November 1901
• Court: United States State Supreme Judicial Court of Massachusetts

180 Mass. 65

61 N.E. 760

KERSLAKE et al. v. CUMMINGS et al.

Supreme Judicial Court of Massachusetts, Worcester.

November 20, 1901

COUNSEL

Jas A. Stiles, for appellants.

Chas F. Baker and W. P. Hall, for appellees.

OPINION

HOLMES C.J.

This is a bill for the cancellation of a mortgage as a cloud upon the plaintiffs' title. The case comes here by the defendants' appeal from the final decree. It appears from the decree that the case was heard upon a written statement of certain facts agreed, which is referred to, and evidence which is set forth. There is no ground, therefore, for the plaintiffs' suggestion that the only question is whether the decree follows the frame of the bill. The case is before us on the merits.

The mortgage referred to was given by the assignee of a tax title, and the main question is whether the tax sale was valid. The mortgaged land is a tract in Fitchburg, measuring about one hundred by one hundred and fifty feet, and having upon it two separate dwelling-houses of four tenements each. This tract was assessed as one lot to Julia May for the taxes of 1894. The sale was under this assessment. More narrowly stated, the main question is whether the assessment can be sustained. Julia May was the widow of Thomas May the former owner of the land who died intestate in 1891, leaving six children, all of whom were minors in May, 1894. Since her husband's death she and her children had occupied one of the eight tenements, and she had let the other seven in her own name, using the money for the support of the children and for repairs. No dower had been assigned to her, and she had not been appointed guardian.

It does not seem to us that Mrs. May can be regarded as one of the 'persons who appear as record owners' of the estate within St. 1888, c. 390, § 56. See Croade v Ingraham, 13 Pick. 33, 35; Smith v. Shaw, 150 Mass. 297, 22 N.E. 924; Maxon v. Gray, 14 R.I. 641; Aikman v. Harsell, 98 N.Y. 186, 191; Cox v. Jagger, 2 Cow. 638, 651, 14 Am. Dec. 522; Kearns v. Cunniff, 138 Mass. 434; Lynde v. Brown, 143 Mass. 337, 339, 9 N.E. 735; Carter v. Peak, 138 Mass. 439. If the assessment is to be upheld it must be on the ground that she was 'in possession' of the land within the meaning of Pub. St. c. 11,§ 13, and this is the ground chiefly relied upon.

The possession which is required by the statute is that which the law recognizes as such, not a mere presence on, or dealing with, the land or a part of it, which falls short of such a relation to it that the supposed possessor could sue for a trespass. The contrary is not decided in Southworth v. Edmands, 152 Mass. 203, 25 N.E. 106, 9 L. R. A. 118, and the proposition is settled in England as to occupancy. Allan v. Overseers of Liverpool, L. R. 9 Q. B. 180; Cory v. Bristow, 2 App. Cas. 262, 276. Such a possession may be an unqualified seizin of the freehold, or an exclusive occupation, no longer called seizin, under a lease (Lynde v. Brown, 143 Mass. 337, 9 N.E. 735, Pierce v. Inhabitants of Cambridge, 2 Cush. 611), or, perhaps, such an occupation purporting to be under a lease, although the title proves defective (Davison v. Gent, 1 Hurl. & N. 744). No other occurs to us. But whether we have exhausted the possibilities or not it seems to us plain that Mrs. May properly could be found not to have had possession of the tract.

Apart from Pub. St. c. 124, § 13, the judge rightly found that the mother had not disseized her children. A contrary finding would have been absurd. Not only is it agreed that the children occupied one tenement with her, but it is plain, as she testifies, that although she let the others in her own name, she was doing so in the children's interest and therefore with no thought of an adverse claim. See Silva v. Wimpenney, 136 Mass. 253, 254. But unless the letting in her own name shows a disseizin, as under most circumstances it would, it shows nothing. It certainly does not indicate a claim to hold under a lease, or as tenant. Nothing indicates an exclusion of the children from their rights as heirs, or from the possession presumed to follow their rights especially when they were upon the land. The mother was occupying the land with the heirs in the way contemplated by the statute (Pub. St. c. 124, § 13). Anthony v. Anthony, 161 Mass. 343, 352, 37 N.E. 386; Kirchgassner v. Rodick, 170 Mass. 543, 545, 49 N.E 1015. No argument for the defendant can be based upon the decision in Southworth v. Edmands, 152 Mass. 203, 25 N.E. 106,...