Leary v. Duff

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Devens, J.
• Citation: Leary v. Duff, 137 Mass. 147 (Mass. 1884)
• Decision Date: 19 April 1884
• Parties: Mary Leary v. William F. Duff

137 Mass. 147

Mary Leary v. William F. Duff

Supreme Court of Massachusetts

April 19, 1884

Suffolk. Petition, filed March 20, 1883, under the Pub. Sts. c. 176 to compel the respondent to bring an action to try his alleged title to a parcel of land in Boston. The petition alleged, that, in June, 1860, one John Duff, the uncle of the petitioner, and the father of the respondent, made a verbal gift of the land in question to the petitioner, and that she had had the open, continuous, and exclusive possession of the same ever since; that John Duff died in November, 1880 leaving a will in which no specific devise was made of any real estate, but the residue of his property, real, personal and mixed, was devised in equal portions to his three children, John R. Duff and William F. Duff, of Boston, and Sibbel A. Bullard, of New York; and that the respondent made some claim of title to said land, adverse to the petitioner's title.

The answer admitted that the respondent was a son of John Duff and one of the residuary devisees named in his will; alleged that the respondent was now the owner of two undivided third parts of said land, and that Sibbel A. Bullard, of New York, was the owner of the other undivided third; that John Duff at the time of his death was the owner of said land; that he never gave the said land to the petitioner, and she never had possession of the same as alleged; and denied the right of the petitioner to maintain her petition.

Hearing before Holmes, J., who reported the case for the consideration of the full court, in substance as follows:

The premises were purchased by John Duff in 1859, and the respondent is one of his residuary devisees, claiming title to two thirds of the same. The petitioner was alone seised at the date of the petition, claiming an estate of fee simple therein. The petitioner testified to facts sufficient, if believed, to make out her title by adverse possession; but her cross-examination and the evidence introduced by the respondent left the matter very doubtful.

The respondent contended that the judge must be satisfied, by a fair preponderance of the evidence before him, that, at the date of filing her petition, the petitioner had acquired a title by adverse possession; but the judge ruled that, if, under any circumstances, an omission or failure to prove the title claimed by the petitioner would be a cause why the petition should not be granted, when the petitioner's seisin and claim were established, inasmuch as there was evidence sufficient to entitle the petitioner to go to the jury if this were a jury trial, it was the duty of the judge, or, if it was not his duty, was within his discretion, to order the action to be brought; and, without finding one way or the other upon the evidence, the judge so ordered.

If the ruling was correct, the respondent was to bring an action within six months of the date of the rescript; otherwise, the petition to be dismissed; or, in either event, such other order or decree to be made as the court might think proper.

Decree affirmed.

C. G. Keyes, for the respondent.

J. A. Maxwell, for the petitioner.

OPINION

Devens, J.

The petitioner has shown that she was, at the time of filing her petition, in sole and exclusive possession of the premises described, claiming title thereto. On this point, the finding of the presiding judge is conclusive. India Wharf v. Central Wharf, 117 Mass. 504. It is the contention of the respondent, that, as she has failed to satisfy the presiding judge that she had acquired a complete title by adverse possession, and as he declined thus to find, it was not his duty, nor was it within his discretion, to order the respondent, who himself asserts title to two thirds of the premises, to bring an action.

We shall not have occasion to consider whether it was the duty of the judge to make the order in question, as a majority of the court are of opinion that it was within his...