Nickerson v. Nickerson

• Decision Date: 30 March 1920
• Citation: 126 N.E. 834,235 Mass. 348
• Parties: NICKERSON v. NICKERSON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

235 Mass. 348

126 N.E. 834

NICKERSON

v.NICKERSON et al.

Supreme Judicial Court of Massachusetts, Barnstable.

March 30, 1920.

Exceptions from Land Court, Barnstable County; C. T. Davis, Judge.

Petition to register title to land by Franklin B. Nickerson against Eunice A. Nickerson and others, resulting in decree for petitioner, and respondents except. Exceptions overruled in part, and sustained in part.Wm. A. Morse, of Boston, for petitioner.

Wm. O. Kyle, of Boston, for respondents.

CARROLL, J.

This is a petition to register a tract of land at Pleasant Bay and Fourside Harbor in the town of Chatham; the land in question being a portion of the Nickerson farm purchased by Jesse Nickerson, the petitioner's grandfather, in 1826. Jesse Nickerson died intestate in 1847, leaving a widow and six children-three daughters and three sons. The daughters were married, their husbands were living, and children had been born to them. Partition was made in the probate court among the six children, of all the real estate of which Jesse died seised, except the reversion of the northeasterly portion of the farm which had been set off as dower to his widow.

One of the sons, Jesse Nickerson, Jr., father of the petitioner, in 1851 purchased the share which had been assigned to his sister Mehitable, the deed being executed by her husband, Isaiah C. Bassett, his wife joining merely to release dower, the land being described by metes and bounds. In 1863, Jesse, Jr., received a deed of the lot assigned to his sister Eunice, this deed being executed by her husband Nathaniel K. Kenney as grantor, she releasing dower and the land being described by metes and bounds. Jesse Nickerson, Jr., in 1851, purchased the land assigned to his sister Tamson and that assigned to the representatives of his brother Sabina. In 1864 he purchased the lot assigned to his brother David. The widow of Jesse Nickerson, Sr., died in 1862. In 1865, Jesse Nickerson, Jr., purchased from the heirs all of the land set off in dower to their mother and received from them a deed with full covenants of warranty, the sisters signing the deed of conveyance as grantors, but none of the husbands signing as grantors or otherwise.

From the time of these conveyances until his death in 1900, Jesse Nickerson, Jr., lived on the farm in full and exclusive occupation, cultivating it as tillage, mowing and pasture land, fencing it, paying taxes, mortgaging and selling parts of it and conducting salt works on the shore. He died intestate, as did his widow in 1904, leaving as their only heir the petitioner who has continued in full and exclusive occupation of the locus; and neither the possession nor title of the petitioner or of his father has been questioned by anyone until the examination of the title preparatory to the conveyance of the estate for an aviation station revealed the exact nature of the deeds and the questions of law raised in connection with them.

The heirs of Tamson assented to a decree for the petitioners. The heirs of Eunice and Mehitable are the respondents. They say that the deeds of the reversion of the dower land and the deeds of the lots assigned to Eunice and Mehitable were, so far as their interests are concerned, invalid, and that no title can be acquired against them, either by estoppel or adverse possession.

1. As to the land set off to the widow of Jesse Nickerson, Sr., the reversion in this land belonged to the six children as tenants in common; and while their respective shares could be disposed of and the title transferred by a deed in proper form, it was the settled law of this commonwealth at the time the conveyances were made, that the separate real estate of a married woman could not be conveyed by her deed. At common law, the husband during coverture had full title to the rents and profits of the wife's real estate. Clapp v. Stoughton, 10 Pick. 463, 469. He had a freehold estate which he might convey. Austin v. Charlestown Female Seminary, 8 Metc. 196, 204,41 Am. Dec. 497. With exceptions not here material, prior to St. 1874, c. 184 (Gen. St. c. 108 [see now R. L. c. 153]), the conveyance of land by deed of a married woman during her coverture, transferred no title. The instrument was void and of no effect in law and equity. Wing v. Deans, 214 Mass. 546, 102 N. E. 313. In 1865, when the warranty deed purporting to transfer the reversion in the dower estate was signed by Mehitable and Eunice, both were married; and as their husbands did not join with them in the conveyance, the deed, so far as they were concerned, was wholly invalid and transferred none of their interest in the reversion.

The petitioner contends, however, that his father from 1865 until his death in 1900, was in exclusive and adverse occupation under a claim of right of all the locus, including the dower land, and that from the time of his father's death the petitioner himself has been in adverse possession of the estate. To this the respondents reply that as Jesse Nickerson, Jr., was a tenant in common with the other owners when he entered on the land in 1865, his possession was not adverse to them, but was in support of the common title and there was no adverse possession by him while he occupied the premises.

It is true as a general rule that the possession of one tenant in common, even if exclusive, it being consistent with the right of his cotenant, is not a disseisin, and an ouster or some equivalent act is necessary to accomplish this, and the sole possession of land by a tenant in common with the receipt of the profits will not alone be sufficient evidence of an ouster. But after the sole possession and appropriation of profits have been continued with the knowledge of the cotenants for a long series of years, a presumption does begin to arise against them. Ingalls v. Newhall, 139 Mass. 268, 271, 30 N. E. 96. It was said by Bigelow, C. J., in Lefavour v. Homan, 3 Allen, 354, 355:

‘It may, however, be safely said that a sole and uninterrupted possession and pernancy of the profits by one tenant in common, with the knowledge of the other, continued for a long series of years without any possession or claim of right and without any perception of profits or demand for them by the cotenant, if unexplained or controlled by any evidence tending to show a reason for such neglect or omission to assert a right, will furnish evidence from which a jury may and ought to infer a natural ouster and adverse possession.’

A conveyance of the premises in connection with the other acts, may be evidence of a disseisin. See Ingalls v. Newhall, 139 Mass. 268, 273, 30 N. E. 96. As expressed by Shaw, C. J. in Rickard v. Rickard, 13 Pick. 251, 253, in speaking of an ouster by one tenant in common:

‘It is also now well settled, that a long exclusive and uninterrupted possession by one, without any possession, or claim for profits by the other, is evidence from which a jury may and ought to infer an actual ouster.’ Joyce v. Dyer, 189 Mass. 64, 75 N. E. 81,109 Am. St. Rep. 603.

Applying these principles and considering all the facts shown, the ruling of the judge of the land court that title to the dower lands could be acquired against the heirs of Mehitable by adverse possession was right; and his finding that it had been so acquired by the petitioner was fully warranted. Jesse Nickerson, Jr., lived on the farm for 25 years, and after his death the petitioner continued to occupy the premises. It was not until 18 years later that their title was questioned. During the lifetime of Mehitable she lived in Chatham, but four miles distant from the locus, and no claim was made on the petitioner or on his father. It must have been known that the exclusive occupation of the land was claimed by the petitioner and his father, and that they dealt with it as their own, using the dower land as well as the land assigned in severalty, as their farm. While in the possession of the petitioner's father a portion of the dower land was conveyed, and during the occupancy of the petitioner he too conveyed the entire farm to his wife, which, upon her death, was reconveyed to him. In 1906 he conveyed by mortgage the entire tract, and sold nortions of the farm and gave various mortgages. Taxes were paid by the petitioner and by his father. They fenced the land and cultivated it and carried on salt works on the shore. While it does not appear that all of these acts relate exclusively to the dower land, the petitioner, as his father before him, openly occupied all the land as his farm and residence. These facts amply warrant a finding that Mehitable and her heirs must have had knowledge of the occupation of the premises for more than 20 years, of the various acts indicating ownership, and that the occupation was under a claim of exclusive possession. Thus a lawful title was in fact acquired.

Although the premises were in the adverse possession of the petitioner and of his father, during the coverture of Eunice Kenney and Mehitable Bassett, they had no right to begin an action for the recovery of the land, nor right to make an entry thereon. They were, as the law provided at that time, under the disability of marriage. Austin v. Charlestown Female Seminary, supra. See Wallingford v. Hearl, 15 Mass. 471;Bruce v. Wood, 1 Metc. 542,35 Am. Dec. 380; Clapp v. Stoughton, supra. See Pub. Sts. c. 196, §§ 5, 6; Gen. Sts. c. 154, §§ 5, 6. Mehitable died in 1892. Her husband died in 1875. The heirs of Mehitable therefore are barred by the statute of limitations and they have no estate in the lands set off in dower to the widow of Jesse Nickerson.

Eunice died in 1889. Nathaniel K. Kenney, her husband, survived her. He died in 1900. Although the heirs of Eunice claim under her and not under her husband, the statute of limitations did not begin to run against them on her death, because the common law estate by curtesy intervened for the life of her husband. During his lifetime the heirs of...