117 Mass. 245 | Mass. | 1875
The demandant’s title to the large lot depends upon the question of delivery of the deed of 1834 from Isaac Hill. The burden rests upon the demandant to prove the fact of delivery. The auditor reports certain matters of evidence from which a delivery might be inferred. Moore v. Hazelton, 9 Allen, 102. Howe v. Howe, 99 Mass. 88, 97. But it is not a necessary inference, and the auditor has not found it as a fact. It is not clear to us that the auditor has not found the contrary. He “ ruled that the deed conferred no title upon any of the persons named therein, and that the demandant showed no title to the large lot.” The case is submitted upon an agreement that the auditor’s report shall “ be taken as a statement of facts.” Taking this ruling or finding by itself, it would imply that there had been no sufficient delivery to confer title upon the grantee, Walter R. Hill; and that fact would be fatal to the demandant’s claim of title to the remainder.
But if this statement of the auditor’s report should be construed as referring only to the persons under whom, as grantees of a remainder, the demandant seeks to make out his title, %e are of opinion that it was correct as a ruling upon the construction and legal effect of the deed.
The only grant which the deed contains is that of a life interest to Walter R. Hill. The clause intervening before the habendum is, in all its characteristics, a declaration of trust; which, if not void for repugnancy, would seem to qualify the preceding grant into a mere equitable estate. Its whole scope contemplates not only control of the property by the grantor, but the right and power of disposal, and the application of the principal as well as income to the support of Walter R. Hill. Following such provisions in relation to the disposal and appropriation of the property during the life of Walter, the further provision that “ if not necessary for his maintenance, the same property shall fall in equal portions to each of my sisters, .... or to their children, if they shall be living after his decease,” cannot well be construed as a grant of a legal estate in remainder.
The auditor also ruled that the demandant showed no title to the “ Hill lot.” And the facts stated by him show none. The demandant claimed title in Hannah Hill, by possession; and it was conceded that, if Hannah Hill had a title, it had been acquired by the demandant. But if the occupation by Hannah Hill had been of such a character as to support a claim of title by adverse possession, it does not appear to have continued for a sufficient length of time to perfect it, being only from 1819 to 1834. Nothing else appears to make out any title for the demandant. Mere possession by Hannah Hill in 1834, not followed by possession in the demandant or in any intermediate grantee from Hannah Hill, will not sustain a writ of entry in 1872. There must therefore be - Judgment for the tenant.