162 Mass. 438 | Mass. | 1894
The question in this case is whether the petitioners allege and show a record title to the real property described in the petition, within the meaning of these words in St. 1893, c. 340. The deeds of Charles Stetson to the petitioners Nathaniel W. Arnold and Justin Meserve, and to Leonard Arnold, who has deceased and whose heirs join in the petition, purport to be given by said Stetson as administrator of the estate of Josiah Shaw, deceased, late of Abington in the county of Plymouth, under an order of the Probate Court for the County of Plymouth, whereby he was licensed and empowered to sell and convey the real estate of such deceased, etc. These deeds are substantially in the usual form of deeds by executors and administrators licensed by a Probate Court to sell real estate in order to pay debts and legacies.
The petition alleges that said Shaw died seised and possessed of said real estate in fee, and devised the same to his heirs at law; that Stetson was duly appointed administrator of his estate with the will annexed; that on October 15, 1870, Stetson sold the property at public auction, claiming to act under a license of the Probate Court; that the purchasers, or those claiming under them, have been in occupation ever since; but that “ said Stetson, who is now deceased, had no license, power, or authority, either under the will of said Josiah Shaw, or from said Probate Court, to sell any of the lands of which said Shaxv died seised and possessed, nor was the condition of said Josiah Shaw’s estate such as to authorize said Probate Court to issue license for the sale of any part of the real estate thereof.”
The Probate Courts are courts of record. Pub. Sts. c. 156, §§ 1, 27. Deeds may convey a good title which yet does not appear of record anywhere. The heirs of deceased persons usually do not appear of record anywhere. Title by adverse possession usually does not appear of record. A forged deed conveys no title, although, if executed in the name of the record owner, it appears on the face of the record to convey a title. A deed executed by an attorney, if the power of attorney is not recorded, conveys no title of record, yet if the attorney is authorized in fact his deed conveys the title as between the parties.
It is to be noticed that St. 1893, c. 340, repealed Pub. Sts. c. 176, where the language was broader, and was not confined to a record title, and that it adopted in this respect the language of St. 1882, c. 237, and St. 1885, c. 283. See St. 1889, c. 442; St. 1890, c. 427; Leary v. Duff, 137 Mass. 147.
In the case at bar the sale was absolutely void. We know of no presumption that the recital in the deed of an administrator can be taken to be true as against the heirs. They are the recitals of the administrator, and not of the heirs. The record of the registry of deeds and the record of the Probate Court in this case show no authority in the administrator, and he had in fact no authority. If the grantees under these deeds have a record title within the meaning of St. 1893, c. 340, we do not see why it must not be held that a deed which is recorded, and which purports to be executed by an attorney in the name of a principal, does not give a record title to the land of the principal, although there is no record of any power of attorney, and no authority in fact has been given. We think that such was not the intention of the statute. Whatever may be true of deeds in which the grantor purports to convey his own land, we think that the statute cannot be held to extend to persons claiming under deeds in which the grantor purports to convey the land of others, when no authority to make the conveyance appears of record in the registry of deeds or elsewhere.
