Twomey v. Linnehan

• Decision Date: 14 March 1894
• Citation: 36 N.E. 590,161 Mass. 91
• Parties: TWOMEY v. LINNEHAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

161 Mass. 91

36 N.E. 590

TWOMEY v. LINNEHAN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 14, 1894

COUNSEL P.B. Kiernan and R. Lund, for demandant.

G.A.A Pevey, for tenants.

OPINION

BARKER J.

The tenants excepted to the refusal to give certain instructions to the rulings given, and also to the proceedings by which the verdict first signed was amended in open court, and received and recorded. The whole charge is stated, but the exception to the rulings given must be construed to be to those only which were contrary to the requests. At the hearing, the exceptions to the refusal to give the requests numbered 2, 3, 4, 5, 8, 9, 12, and 15, were waived.

1. The first, sixth, and seventh requests were upon the theory that an actual wrongful dispossession or exclusion of the demandant, or an adverse possession by the tenants, must be shown to maintain the action. But, under our statutes, the demandant declaring on his own seisin alleges a disseisin and is required to prove only that he is entitled to such an estate as he claims, and that he has a right of entry. The suit is prosecuted and conducted as if the demandant had made an actual entry and had been immediately ousted, and, if he proves his estate and right of entry, he recovers, unless the tenant proves a better title in himself. Pub.St. c. 173, §§ 1-4. It is true that, as provided in section 6 of the same chapter, a person in possession, who has actually ousted the demandant, or has withheld possession from him, may be considered, at the election of the demandant, as a disseiser, although he claims an estate less than a freehold; and that one of the defenses in the case at bar was an allegation that the demandant had bargained the locus to the tenants, and had agreed to convey the title to them, and had put them in possession as part of the bargain, and had broken his agreement, and refused to fulfill it, and had never since regained possession. But there was a further joint answer of title in one of the tenants under a tax deed, and each of these three requests was incorrect when applied to some aspect of the case, and so could not properly have been given. Upon the question whether the tax deed was a better title than that shown by the demandant, it would have been incorrect to rule that an actual wrongful possession or exclusion of the demandant, or an adverse possession by the tenants, must be shown to entitle the demandant to recover.

2. As to the tenth request, the jury found specially that the tenants had agreed to pay the taxes until the purchase money should be paid; and, as to the eleventh request, the question whether there was a sufficient memorandum under the statute of frauds was immaterial, because the instructions given did not hold that the demandant must have agreed to convey by a memorandum good under the statute; and, again, the memorandum does not purport to be signed by the demandant.

3. The thirteenth request, that, if the demandant was entitled to recover as against the tax title, he could only so recover against one of the tenants, was in effect a request to rule that the demandant could not recover against the other tenant, and was properly refused. If the tax title had been the only issue, and John S. Linnehan had disclaimed, the instruction might have been correct; but, in the actual posture of the case, the demandant could recover against both tenants, although only one of them was a grantee under the tax title.

4. The fourteenth request may be considered in connection with the exception to the rulings given. As before stated, one of the defenses claimed was, in substance, that the demandant had bargained the locus to the tenants, and promised them a deed upon considerations to be performed by them, and as a part of his bargain had placed them in possession; that they had either performed their part of the agreement, or had been prevented or excused by the demandant from performing it, and that he had broken his part of the agreement; and that they were yet in possession, and had the right of possession under their agreement to purchase. ...