Backus v. Chapman

| Mass. | Jan 15, 1873

Wells, J.

What constituted the “homestead” of Joseph Backus, the testator, at the time he made his will, its extent and boundaries, was an inquiry mainly of fact. No question of law is presented to us, unless it be whether the facts stated would warrant the conclusion arrived at by the judge who heard the case. We think they would; and it is not open to us to revise f hat conclusion upon the weight of the considerations which affect it as a question of fact. Trial by jury having been waived, the findings of the judge, in the court below, upon all facts and all inferences of fact, are conclusive, as if determined by a verdict.

The action is maintainable by several tenants in common jointly, for recovery of an undivided portion of the premises demanded. Gen. Sts. c. 134, §§ 9,10. The right to mesne profits is incident to the recovery of judgment. Gen. Sts. c. 134, § 13. The ouster being admitted by the plea, or established by the proof, the fact that the tenant holds the title to an undivided share of the land, as tenant in common with the demandants, is no obstacle to recovery of judgment, both of possession and for damages or mesne profits. Silloway v. Brown, 12 Allen, 30. The tenant is also entitled to have the value of his improvements ascertained, and to recover compensation therefor. Gen. Sts. a. 134, §§ 18, 19.

Such recovery for mesne profits and compensation for improvements, between tenants in common, is allowed even in process for partition, when the respondent denies the right and title of the plaintiff or petitioner to any part of the premises, and claims the same as his own estate in fee. Gen. Sts. c. 136, § 46.

The exceptions to the ruling of the court below, that the demandants were entitled to recover judgment for possession of two undivided thirds of the parcel of land described upon the plan as indicated by the letters A, B, O, D, E, F, are accordingly overruled.

The exceptions to the ruling that no recovery could be had between these parties for rents and profits, and no compensation for improvements, and rejecting the evidence to prove the same, offered by each party respectively, are sustained; and the case is to stand for further hearing upon those claims.

Exceptions sustained,