Silva v. Wimpenney

• Decision Date: 29 January 1884
• Citation: 136 Mass. 253
• Parties: Francis J. Silva v. Emma R. Wimpenney. Same v. Susanna D. Dunham
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

136 Mass. 253

Francis J. Silva v. Emma R. Wimpenney.

Same v. Susanna D. Dunham

Supreme Court of Massachusetts

January 29, 1884

Argued October 23, 1883

Dukes County.

Verdict for the demandant to stand.

C. G M. Dunham, for the tenants.

W Clifford, for the demandant.

Holmes J. Field & W. Allen JJ., absent.

OPINION

Holmes, J.

These are two writs of entry, dated August 22, 1882, for the same piece of land in Edgartown. The court below ruled that the tenants had not acquired a title by adverse possession, and we think that the ruling was right. The demandant was the tenants' father, and the only overt acts relied on, granting that he was chargeable with notice of all of them, were all such that he was entitled to assume that they were done in subordination to his title. So far from there being anything which gave him unequivocal notice that his children were setting themselves up against him, or were being set up against him by their custodian, there was probably no such thought in fact. They admit that they did not entertain it so far as the land was concerned, and it is pretty clear that their self-styled guardian recognized the demandant's title.

The children first lived on the premises when very young, with their mother, their father being most of the time at sea. Then she died, in 1856, and, the children being still minors and their father being at sea, they went to live with their uncle, Dunham, who was her executor, and called himself their guardian. The demandant visited them about a year afterward, and from time to time supported them or paid money yearly toward their support, and corresponded with them often, but, after his first visit, went to Fayal and lived there.

While the children were living with him and the father was away Dunham, who seems to have been the only person who could have taken charge of the premises, let them, so far as appears, at will only, and without specifying his authority. The letting by itself gave the demandant no reason to suppose that Dunham was not acting for him. Dunham certainly was not acting for himself, and the demandant had the legal title. But take it that the house was let for the benefit of the children, and that the demandant had notice of it. If that were all, as the children had occupied the house by their father's leave up to that time, and as they were too young to live alone after their mother's death, any other reasonable use of the house for their benefit, while the father...