191 Mass. 196 | Mass. | 1906
The more important of the eleven exceptions taken by the defendant, Harper, to the master’s report, refer to the acquisition of title by the plaintiff’s grantor to the land described in the bill, and to the vesting of that title in the plaintiff. That Elijah Hewins, the great-grandfather of the defendant, under whom she claims, held at his death the record title to the property then in the physical possession of a voluntary religious organization known as The Sharon Baptist Church is undisputed. The facts, however, set forth in the report make it plain that after purchasing the land in 1832, a meeting house was built thereon in 1833 for the use of the society, which since then has uninterruptedly occupied the premises for religious worship until merged in the corporation, which is the present plaintiff. There would seem to be little, if any, doubt from the entries made in Hewins’s book of accounts that the funds required to buy the land and erect and furnish the building were raised by voluntary subscriptions, which were expended by him for this purpose. It also is expressly found that during his life he was a regular attendant upon the services, and impliedly if not expressly must have acquiesced in the use to which the premises were being put, and that he did not assert nor have his heirs during the forty-five years which have elapsed since his death asserted any interest in the land.
To overcome the presumption which arises under these findings that a title by limitation was acquired, the defendant takes the position that being a voluntary religious organization it could not at the date of the deed, or for more than twenty years thereafter acquire by disseisin a fee, because not being a corporation it was incapable of taking a grant of real property. If there was no artificial person whom the law could recognize as a disseisor no matter how great the lapse of time a title by limitation would not ripen as against the owner of record.
But this question is settled against the defendant by reason of the statutes in force during the entire period necessary to create a title by adverse possession. By the St. of 1811, c. 6, § 3, re-enacted in the St. of 1834, c. 183, § 5, and in Rev. Sts. c. 20, § 25, an unincorporated religious society was enabled to
With the exceptions which relate to this question, the admission of certain evidence in connection therewith must be considered. For the purpose of showing the original organization of the voluntary society as well as its action when contemplating the purchase of the lot now in controversy, and the erection of the house of worship, the entries shown on the record book of the society were admissible. This body having for the limited purpose given to it by statute the power to acquire real and other property possessed the implied correlative right inherent in a duly organized corporation to show by its records, the authentication of which does not appear to have been questioned, not only its organization, but the vote taken to purchase the land and erect the building. Fisher v. Whitman, ubi supra. Stebbins v. Merritt, 10 Cush. 27. A further objection to the admission of this evidence was that it tended to prove self serving declarations in derogation of the defendant’s title, but the record was relevant to establish the fact that in taking the deed of the land, though in his own name, he was acting in its behalf rather than purchasing for himself, for it is stated by the master that the several entries in evidence were signed by Elijah Hewins as clerk, who must be presumed to have known that the votes which he recorded were inconsistent with any subsequent claim of ownership by him, and those claiming under him must be charged with his knowledge, as well as bound by the entries in his handwriting found in his account book, relating to the expenditure of the money which had been contributed. Pickering v. Reynolds, 119 Mass. 111.
Nor is the defendant’s next contention that the occupation of
It is obvious that the society was in sole occupation, and Hewins does not appear to have asserted any individual right antagonistic to its claim of a freehold shown by the erection and maintenance of the church, and the pecuniary support of regular preaching.
It must have been generally understood that these things were not being done by his permission and for his sole benefit as. a landowner, and such an understanding is sufficient, as no doubt the master found, to repel any presumption that when he was present upon these occasions he attended for the purpose of making a technical entry in conformity with his legal title.
At his death the disseisin had continued for more than the full statutory period, and not only was any right of entry barred, but by the operation of the statute of limitations the time within which a real action must be brought had passed, and the estate had vested in the society as effectually as if originally deeded to it instead of having been conveyed to him. School District No. 4 v. Benson, 31 Maine, 381, 384. Leffingwell v. Warren, 2 Black, 599, 605. Scott v. Nixon, 3 Dr. & War. 388, 405, 407. Stearns v. Janes, 12 Allen, 582, 584.
If, however, it is manifest that he had lost by lapse of time any right of entry, or of-action to repossess the estate, the defendant further insists that the deed by which it was the intention to convey the premises to the plaintiff was insufficient as a conveyance to pass title to the property. An examination of this instrument clearly shows that in terms it does not purport to be the grant of the Baptist Church of Sharon, acting by its trustees duly authorized to convey, but is in recitals, covenants, execution and acknowledgment their individual act. But having no vested interest in the land they were authorized to transfer only the title of their principal, and as this has not been done, the fee did not pass, but remained in the original society.
Under R. L. c. 182, §§ 1-5, before the plaintiff could have maintained a petition to require the defendant to bring suit to try the validity of her title it would have been obliged to have proved its exclusive possession, and that it either was seised of an estate of freehold in the premises, or held therein an unexpired term of not less than ten years. Tompkins v. Wyman, 116 Mass. 558. Blanchard v. Lowell, 177 Mass. 501, 504. But mere possessory titles are not recognized by our statute, and in equity the general doctrine is well settled, that a bill to remove a cloud from the land affected cannot be maintained unless both actual possession and the legal title are united in the plaintiff. Holland v. Challen, 110 U. S. 15, 24. Orton v. Smith, 18 How. 263. Ward v. Chamberlain, 2 Black, 430, 445. Frost v. Spitley, 121 U. S. 552. Ely v. New Mexico Arizona Railroad, 129 U. S. 291. Devonsher v. Newenham, 2 Sch. & Lef. 197, 208. Clouston v. Shearer, 99 Mass. 209. Hinchley v. Greany, 118 Mass. 595, 598. Allen v. Storer, 132 Mass. 372, 376. Smith v. Smith, 150 Mass. 73.
That the plaintiff claimed to have both is manifest from the frame of the bill, which alleges that its title is impeached by the outstanding deed to Hewins, and in the second prayor asks that a decree may be entered that it is seised in fee. But although the plaintiff apparently includes among its members those who formerly worshipped under the name of the voluntary association, and is in actual possession exercising dominion over the premises, and also may be said to hold by an inchoate paper title, which requires only the formal act of a confirmatory deed in proper form to perfect its ownership, yet the recorded deed, the cancellation of which is the relief usually given, puts in jeopardy only the paramount title, which is in the plaintiff’s grantor. Sawyer v. Cook, 188 Mass. 163, 170. If, however, the plaintiff’s ownership were thus confirmed, then, under Equity Rule 25, by an amendment in the nature of a supplemental bill, and in support of the original bill, setting forth that such a conveyance had been made, a decree in the form asked for could be granted. McMurtrie v. Guiler, 183 Mass. 451.
Nor does the admission of the parties made for the purpose of
If what has been said disposes of the principal exceptions there are some minor questions that remain for consideration.
Although the bill originally was not framed to include the defendant by name, yet upon being summoned in to defend she appeared and joined issue by an answer to the merits, thus waiving any defects of form.
If .the final decree, although silent as to any disposition of the master’s report or of the exceptions, must be considered by implication as overruling the exceptions and confirming the report, yet, as this decree must be reversed, we deem it proper to refer to the disposition made of the third prayer of the bill. By It. L. c. 182, §§ 6-10, the general description of parties found in the sixth paragraph of the bill, and in this prayer is authorized, but none of the defendants within this description having appeared after due notice and no interlocutory decree taking the bill for confessed having been ordered, the case independently of the invalidity of the plaintiff’s title under § 10 was not ripe as to them for final disposition. Frow v. De La Vega, 15 Wall. 552.
Because of the failure of the plaintiff to establish its title, the decree of the Superior Court must be reversed, and a decree entered sustaining the second and fifth exceptions to the master’s report, but overruling the remaining exceptions, and confirming so much of the report as relates to them, with the further provision that if the plaintiff, within such time as that court may order, perfects its title by a proper conveyance a decree may be entered granting appropriate relief, but if this is not done the bill is to be dismissed.
Ordered accordingly.
