218 Mass. 487 | Mass. | 1914
These are bills in equity
The determihation of the controversy upon these points involves an examination of the history of the defendant corporation. Jeffries Neck Pasture is an outlying hill in the town of Ipswich containing about four hundred acres and used for many years as a pasture. Before 1710 it belonged to the Commoners of Ipswich who owned other lands. Between 1707 and 1710 other inhabitants of Ipswich were admitted as Commoners and an apportionment of the land was made, though not in equal proportions, among the old and new Commoners. Rights uniformly described by numbers were established, as follows: two hundred and sixty-eight old rights, two hundred and twenty-four new rights, both relating to upland, and one hundred and eight old marsh rights and one hundred and eleven new marsh rights. Originally these were represented by lots laid out in severalty and to
The salient facts upon which rests the decision of this question are these: It does not appear that either the plaintiff or its predecessor, the Commoners, actually enjoyed pasturage by virtue of undrawn rights. In 1723 the Commoners pleaded in an action brought by one Samuel Tilton that they had no rights in common land left undisposed of. The facts show that this plea was not true, and the defendants are not in a position to claim an estoppel by reason of the plea. Assuming that their votes to that end were effective, the Commoners granted two undrawn rights to two different persons in 1722 and two other such rights in 1770, the Proprietors two in 1767 and later another after conference with the Commoners’ clerk to ascertain whether the grantee was entitled thereto. There was discussion from time to time touching the rights of Commoners and later of the plaintiff in the undrawn rights. The Proprietors paid obligations to its clerk and employees in pasturage, but it never was expressed to be in respect of undrawn rights and there was no relation between the value of
“Commoners” as that word generally is used in the real estate law of the colonial and provincial history of this Commonwealth, describes those who owned undivided tracts of land as tenants in common by virtue of a grant from the government to several persons usually for purposes of settlement and the establishment of a town. Higbee v. Rice, 5 Mass. 344. Attorney General v. Tarr, 148 Mass. 309, 311. From early times they have been enabled to act as a corporation. But, as was said in Proprietors of Monumoi Great Beach v. Rogers, 1 Mass. 159, at page 164, “This is a species of corporation different from corporations in general. . . . The statutes take away no rights from the individuals composing such a corporation, which, as tenants in common, they had before they were incorporated, but, on the contrary, give them new powers. . . . Whenever individuals are seised, as tenants in common, in their own several rights, they are, in the manner pointed out by law, authorized to incorporate for the purposes and with the powers expressed in the statutes; and are, by such an incorporation, seised as a corporation; and that without any corporate act done.” The relation between the owners of the land held in common and the corporation established by them is peculiar. The parties do not act at arms length and independent of each other. On the contrary, the owners continue in many respects to be tenants in common as to the land, while the corporation exists for the benefit of all and cannot act adversely to any of those tenants without violation of its duty to protect the interests of all.
Plainly at the beginning in 1710 and 1713 the ownership of the undrawn lots was in the Commoners. They were not granted then to the corporation known as the Proprietors. This is the starting point. There is no grant nor vote to convey to the Proprietors at any time subsequent. On the contrary, there is evidence of assumption of continued ownership by the Commoners. The votes to convey rights by the Commoners in 1722 and 1770 at least were evidence and perhaps “sufficient proof of title and seisin” and raised a presumption of sufficient seisin in the Commoners to enable them to convey and vest title in the grantee. Gloucester v. Gaffney, 8 Allen, 11, 13. It is argued by the defendants that
The record fails to disclose any positive act by the Proprietors which constitutes either ouster of the Commoners or the plaintiff or active possession of their rights. It is to be noted that the Proprietors as a corporation did not have independent title to the land. The corporation had seisin simply for the mutual advantages of all the tenants in common. For these reasons its conduct in respect of acquiring title by adverse possession or ousting the right owners stands on a less favorable footing than does that of tenants in common. Yet it is the general rule that possession of one tenant in common of the common estate is not adverse to his cotenants but is consistent with their title. An act to amount to dispossession or ouster must be decisive and unequivocal and evince a settled purpose to exclude the cotenant from all enjoyment of his title. Facts sufficient to show such a purpose will vary with each case and no universal test can be formulated. Lefavour v. Homan, 3 Allen, 354. Bellis v. Bellis, 122 Mass. 414. Ingalls v. Newhall, 139 Mass. 268. Parker v. Proprietors of Locks & Canals, 3 Met. 91, 99.
Springfield v. Miller, 12 Mass. 415, on which the defendants strongly rely, is distinguishable on the ground that there was an initial grant by the Commoners of an entire tract to the Proprietors. In the case at bar the Commoners made no grant
The most significant circumstance in the case at bar is that from the time of the grant by the Commoners to the plaintiff in 1788 until 1893 there was no definite and positive demand by the plaintiff in assertion of its rights. But there was not until 1893 any direct refusal by the Proprietors to recognize the plaintiff as a right owner. From time to time the plaintiff took action looking toward an investigation and assertion of its rights. The relation of the corporation known as the Proprietors to the owners in common of the land, if not that of trustee to cestuis que trust, is akin to that relation and it is difficult to infer from equivocal acts a purpose to violate the duties arising out of that relationship and to disseise or oust the right owner. There was no positive denial by the Proprietors of the rights of the plaintiff until 1893. There has not been time since then for adverse possession to ripen into title. In view of all these peculiar circumstances we think that the facts do not require a finding of ouster or adverse possession by the defendant corporation and that the finding of the master that the plaintiff is still a right owner was correct.
The result follows from this conclusion that the vote to sell adopted in 1896, under the authority of which the deed from the Proprietors to the defendant Clark was executed, was not passed by the votes of two thirds in number of the right owners in the Proprietors, and hence that the deed under which the defendant Clark claims was void.
It would seem also that the same consequence must ensue from the finding of the master that sixty-one and forty-three one hundredths rights (some of these being marsh rights more divided in number and possibility of ownership) out of the total of four hundred and twenty-four and forty-eight one hundredths rights have been lost sight of and the owners are unknown. Certainly facts enough are not reported respecting these rights to warrant the inference that the title to them has been acquired through ouster or adverse possession by the Proprietors.
As the deed from the Proprietors to the defendant Clark was not merely voidable but void at its inception, because not author
The plaintiffs are entitled to a decree setting aside the deed as a nullity and awarding them costs.
Ordered accordingly.
The first filed in May, 1903, in the Superior Court and afterwards transferred to the Supreme Judicial Court, and the second filed in the last named court on May 20, 1903. A master found that the proceedings purporting to authorize the defendant corporation to convey its real estate to the defendant Clark were void. The defendant denied that the plaintiff town had any title to rights in the defendant corporation, and at the meeting of the right holders of the defendant corporation the plaintiff town was not allowed to vote. The master found that the town was the owner of a certain number of the rights and that less than two thirds of the known right holders voted for the sale. Both cases were reserved by Be Courcy, J., for determination by the full court.
Wilbur E. Rowell, Esquire.