172 Mass. 401 | Mass. | 1899
Francis Courtis, being seised of the two parcels of real estate named in the petition, namely, a house and land on Back Street in Marblehead, and Baker’s Island in Salem Harbor, died testate, June 15, 1870, leaving a widow, Jane Courtis, the respondent, a son, Francis Mason Courtis, and two grandchildren, who were children of a deceased son, the petitioner Rebecca C. Frost being one of the grandchildren. When the case was originally tried in the Superior Court, the respondent claimed as a part of her defence that by the death of the testator’s son, Robert Harris Courtis, who died before the testator, the interest devised to Robert did not lapse, but went to the survivors named in the second clause of the will, namely, to the respondent and her son, Francis Mason Courtis ; and upon this issue a verdict in the Superior Court was directed for the respondent, and the case was reported to this court under the following terms, namely: “ If the ruling was right, judgment is to be entered
On this part of the case the only question before us is whether the court had the power to allow the amendment. It is the policy of existing legislation and practice to allow amendments and pleadings to be made at any time before final judgment. Section 42 of the Pub. Sts. c. 167, allowing amendments, has always been liberally construed, and there can be no doubt that the Superior Court had the power to allow the amendment, notwithstanding the terms of the report of the first trial to this court and of the rescript thereon. Hutchinson v. Tucker, 124 Mass. 240. Gray v. Everelt, 163 Mass. 77. Terry v. Frightman, 133 Mass. 536. West v. Platt, 124 Mass. 353, and cases therein cited. The amendment raised no defence inconsistent with the question of law decided by this court.
The trial of the case proceeded upon the defences set up by the respondents, namely, prescription and estoppel, the latter defence applying only to Baker’s Island.
Of the thirteen requests for rulings, the court, while not adopting the precise language, gave in substance the first, and as to the second substantially ruled that mere continuous possession
We think the law thus laid down was correct. Sawyer v. Kendall, 10 Cush. 241. The court defined in sufficiently accurate terms the elements necessary to constitute adverse possession as between cotenants, and also the elements of an estoppel in pais.
The petitioner also contends that the deed by the respondent to Dr. Morse, being a deed by a tenant in common of a part of the common estate by metes and bounds, was utterly void as against her. But such a deed is not absolutely void. The rule is stated in De Witt v. Harvey, 4 Gray, 486,491, as follows: “ Although a conveyance by a tenant in common of a portion of the estate in severalty is invalid as against his cotenants, and can be avoided by them, it is nevertheless good by way of estoppel against the grantor and his heirs, and is valid against all persons unless avoided by the cotenants.” If the respondent Jane Courtis was a disseisor at the time of the delivery of the deed, (and that was the question on trial,) she was none the less such because in fact the title but for the disseisin was in her and the petitioner as tenants in common. If the deed took effect at all, it took effect as the deed of a disseisor, and that was the only claim made by the respondents as to its effect. Upon examining the evidence