King v. Barns

30 Mass. 24 | Mass. | 1832

Wilde J.

delivered the opinion of the Court. Upon a comparison of the titles of the parties, it appears to us manifest, that the demandant is entitled to a new trial.

The two lots demanded were originally laid out to Benom. Sacket and to Thomas Ponder, and the demandant traced back his title to Benjamin Barns, whose wife was one of the heirs of Benoni Sacket, and to Moses Allen, one, if not the only, heir of Thomas Ponder ; — thus apparently making out a good title to a part of the whole of both lots.

The tenant claimed under a deed from the town of Westfield, and attempted to show that the town, and those claiming under them, had had exclusive possession of the lots demanded, for more than thirty years before the commencement of this action. And he introduced evidence tending to establish this title by disseisin. But this title fails as to some part of the land demanded, as the report finds that a portion of the land had never been cleared and inclosed, and consequently of this portion the town, and those claiming under them, could not have had such an open and exclusive possession as would bar the demandant’s title.

The tenant also attempted to defend himself by disproving the seisin of the heirs of Sacket and Ponder, and for this purpose he gave in evidence a deed from Sacket to David King, dated in 1741 ; also a deed from Ponder to Daniel Hubbard, dated in 1736. The admission of this evidence was objected to on the part of the demandant, but the objection was overruled, and the evidence admitted. This evidence was clearly inadmissible to show a title in a third party under whom the tenant' did not claim ; but for the purpose for which it was admitted, namely, to rebut the demandant’s evidence of seisin, it was unquestionably competent evidence. Whether it was sufficient effectually to rebut it, is more doubtful. The heirs might have been actually seised, notwithstanding the conveyances of their ancestors. There does not, however, appear to be any evidence of such seisin, and therefore it seems sufficient to disprove the seisin of the ancestors.

But the whole estate in the lots in question, was not conveyed by the deeds from Sacket and Ponder. The deed from the latter conveys only an undivided moiety in fee ; with a covenant, that after the grantor’s death, and the death of his wife, the grantee should have the other moiety ; but there are no words of limitation in this part of the deed, and therefore, if the covenant would amount to a grant, and was not void as conveying an estate to commence in futuro, still the grantee took only an estate for life in this moiety, and on his death the title reverted to the heirs of Ponder.

It is therefore manifest, that as to some portion of the land demanded, the demandant’s title was unimpeached, and against it the tenant had no legal defence.

New trial granted.