8 A. 709 | R.I. | 1887
David G. Hall, in September, 1869, owned a farm in Warwick, called the Battey farm, containing about one hundred acres. This included a triangular lot of two or three acres at the southwest corner of the farm, which had previously been deeded to the owner of the Wightman farm adjoining, by heirs of Russell Battey, although they held no legal title. The purchaser, however, took possession of the lot and fenced it off, but the whole had come into Hall's possession in A.D. 1869 as the owner of both farms. He then *524 gave a mortgage of the Battey farm to Sarah T. Battey, describing it as such, and by boundaries which included the triangular lot in question, by measurement as "containing 97 acres, more or less;" and also by reference to a previous deed to him, reciting the same boundaries, but much smaller measurement. In May, 1871. Hall sold the Wightman farm and this triangular lot to the defendant, making no mention of the mortgage then outstanding on the Battey farm, and under this deed the defendant entered into possession. We make no other reference to the deeds from the Batteys, because they had no title to convey; and whether they had or not is immaterial, since Hall was the sole owner of both farms when the mortgage was given.
In May, 1884, the Battey farm was sold under the mortgage to Walter M. Greene, who, in December, 1885, sold to George E. Aldrich, and Aldrich sold to Mrs. Doyle, who now sues for possession. At the trial the court directed a verdict for the plaintiffs, and the defendant petitions for a new trial. He contended that there was an uncertainty and inconsistency in the description which entitled the jury to find that the triangular lot was not included in the mortgage and so did not pass to the plaintiffs. If the only description were the "Battey farm," evidence to show what it included would be pertinent. But that is not the case. Boundaries are given which include the lot sued for. The only question, then, is whether the fact that the area mentioned is smaller than it should be with the triangular lot included, makes such an inconsistency in the description as to warrant the inference that the description by boundaries is uncertain or incorrect. The rule is well settled that in case of a discrepancy in area, the lines of ascertained boundaries must control, unless there is such an averment or covenant of quantity as to show that the exact quantity was the thing granted. The case of Waterman v. Andrews, 3d ed. *630, and cases cited. The case of Waterman v. Andrews,
Whether we regard one who owns the equity of redemption as a tenant, or as one holding in privity with and subject to the mortgagee's right of entry, his holding is not inconsistent with the title of the purchaser at the mortgagee's sale. There is, therefore, no adverse holding, no ouster of the owner, and no disseizin, "until the possession before consistent with the title of the real owner becomes tortious and wrongful by the disloyal acts of the tenant, which must be open and notorious, so as to preclude all doubt as to the character of the holding or the want of knowledge on the part of the owner." Zeller's Lessee v.Eckhert, 4 How. U.S. 289, 296; Jones on Mortgages, §§ 672, 703, and cases cited.
A tenant's possession does not change its character by an owner's giving a deed to another. If one was not in hostile occupation before the deed was given, he would not be afterwards until some change should show that the possession had ceased to be subservient and had become adverse. In this case the defendant was rightfully in possession at the time of the sale; his holding was not adverse to the purchaser who permitted him to remain in occupation, and nothing occurred afterwards to change the character of the holding on the part of the defendant. It follows, therefore, that there was no disseizin of the mortgagee and his assigns, and that their deeds were not invalid on that account. We see no defence to the plaintiff's title, and think the verdict in their favor was rightly directed.
Petition dismissed.