Endicott v. Haviland

| Mass. | Dec 31, 1914

Braley, J.

By the paroi contract the tenants’ mother, the purchaser, entered into the exclusive occupation of the demanded premises in 1872, which continued until her death in 1910. The title, however, was not to pass until the consideration had been paid, and in 1882, having rendered the services agreed upon, she asked for a deed in accordance with the agreement. But, although assured that the vendor’s promise would be kept, no deed ever has been given, and the demandants, who under intermediate devises have succeeded to the record ownership, now seek to recover the land.

It is settled by our decisions in Sumner v. Stevens, 6 Met. 337, 338, Wheeler v. Laird, 147 Mass. 421" court="Mass." date_filed="1888-10-18" href="https://app.midpage.ai/document/wheeler-v-laird-6422870?utm_source=webapp" opinion_id="6422870">147 Mass. 421, and Bond v. O’Gara, 177 Mass. 139" court="Mass." date_filed="1900-10-31" href="https://app.midpage.ai/document/bond-v-ogara-6427242?utm_source=webapp" opinion_id="6427242">177 Mass. 139, that where under an oral contract for the sale of lands the purchaser enters and continues in unopposed and exclusive occupancy, his intention to take as owner is manifest, and until the owner of record asserts his title and regains possession the occupation by the purchaser is adverse. The purchaser having fully performed her part of the contract in 1882, performance by the vendor then became due. If thereafter the possession of the tenants’ ancestor uninterruptedly continued for twenty or more years, the action' was barred in 1902, nine years before the date of the writ. Pub. Sts. c. 173, § 2; c. 196, § 1. R. L. c. 179, §2; c. 202, §§20, 22. Brown v. King, 5 Met. 173. Johnson v. Bean, 119 Mass. 271" court="Mass." date_filed="1876-01-04" href="https://app.midpage.ai/document/johnson-v-bean-6418359?utm_source=webapp" opinion_id="6418359">119 Mass. 271. Bigelow Carpet Co. v. Wiggin, 209 Mass. 542" court="Mass." date_filed="1911-09-05" href="https://app.midpage.ai/document/bigelow-carpet-co-v-wiggin-6431528?utm_source=webapp" opinion_id="6431528">209 Mass. 542. Melvin v. Proprietors of Locks & Canals, 5 Met. 15.

The demandants contend, that the proceedings in equity instituted in 1893, when they proposed to eject the tenants’ mother from the premises, interrupted the running of the statute. It is true that, while she sought injunctive relief to prevent a threatened eviction, the bill also asked for specific performance, and upon demurrer it was dismissed. But this was an incident or a part only of her claim of exclusive ownership in bar of the attempt of ouster. The right to stop the acquisition of a prescriptive title, is a right possessed by the record owner of the land or his privies in estate. It is for this reason that the possession of the disseisor must be open and notorious or it is not adverse. Currier v. Gale, 3 Allen, 328, 330. A demand for a record title by a purchaser in possession, to which but for the statute of frauds no defence is shown by the report, was not as matter of law inconsistent with the assertion of any and all other rights enabling her to retain the premises. Jordan v. Riley, 178 Mass. 524" court="Mass." date_filed="1901-04-13" href="https://app.midpage.ai/document/jordan-v-riley-6427457?utm_source=webapp" opinion_id="6427457">178 Mass. 524. Bond v. O’Gara, 177 Mass. 139, 143. The allegations of the bill were not conclusive proof that the claim of ownership had been subordinated to the sole contingency of obtaining the promised conveyance, and that all other rights had been abandoned, but disclose an intention to rely upon every ground of affirmative defence when her rights were unjustifiably ignored and assailed. The ruling having been unqualified that the proceedings in equity stopped the running of the statute, as well as negatived any claim to the acquisition of title by prescription, it was erroneous, and the tenants under the terms of the report are entitled to judgment.

So ordered.