Curtis v. Goodwin, 232 Mass. 538

Curtis v. Goodwin

232 Mass. 538 | Mass. | 1919

De Courcy, J.

This is a petition to register the title to two parcels of land situated in Marblehead. The Land Court entered *540a decree for the petitioner. The exceptions of the respondents relate only to parcel number one, the record title to which is in the petitioner.

The principal contention of the respondents is that Benjamin F. Goodwin,, under whom the respondents claim, entered into possession of the locus under an oral agreement for the purchase thereof, that he performed his part of the contract more than twenty years before the filing of the petition for registration, and that he has acquired title by adverse possession. A sufficient answer to this contention is that the judge, who saw the witnesses and heard the vague testimony as to an alleged oral contract, has found in substance that Goodwin was not in possession under an agreement to purchase. That finding is conclusive on us, as we cannot say that there was no evidence to support it. Boston & Albany Railroad v. Reardon, 226 Mass.. 286, 291.

It is not in dispute that Goodwin hired the land in question, or a portion of it, in 1870 from Isaac C. Wyman, taking a lease for a term of nine years from September 1, with a privilege of renewal. The lessee was given the right to erect a dwelling house on the land, and to remove the same before the termination of the lease; and he agreed to repair the party fences and ditches, and to pay all taxes and assessments during the term and for such further time as he might hold the premises. It is elementary that a possession which will constitute a disseisin of the true owner must be not only open and notorious, but adverse, “with an intention to appropriate and hold the same as owner, and to the exclusion, rightfully or wrongfully, of every one else. ” Bond v. O’Gara, 177 Mass. 139, 144. Duff v. Leary, 146 Mass. 533. The judge has found that the relation of landlord and tenant did not cease, and that the possession of Goodwin was not hostile to but was in recognition of the title of the owners. This finding was warranted by the evidence, much of it relating to facts subsequent to the term specified in the lease; — such as Goodwin’s bill of sale in August, 1880, of “the house standing on land I hire from said Wyman;” his request for a deed from Wyman in 1898; his statement to the town clerk in 1903, that he would get the permission of Wyman to locate a drain on the land in question; and his conversation with Isaac C. Wyman’s niece in May, 1910. Gorton-Pew Fisheries Co. v. Tolman, 210 Mass. 402.

*541In view of the findings of fact it is unnecessary to consider the requests of the respondents relating to the title of the petitioner. Isaac C. Wyman, one of the predecessors in title of the petitioner, owned at least a portion of parcel number one since the Gardner and Gilley deed of March 14, 1848. And he had charge of the portion belonging to his brother William B. Wyman. As Goodwin entered and continued to hold the locus as tenant of Isaac C. Wyman, and never renounced his landlord’s title, he cannot now controvert it in these proceedings. Morse v. Goddard, 13 Met. 177. Gage v. Campbell, 131 Mass. 566.

The record discloses no error, and the exceptions must be overruled. 0

So ordered.