Kittredge v. Proprietors of Locks & Canals

| Mass. | Oct 15, 1835

Shaw C. J.

delivered the opinion of the Court. The ground taken for the demandants in the present case, to avoid the obvious consequences of the disseisin of their ancestors, is, that when Benjamin Melvin conveyed the estate in fee to Joseph Chambers in 1782, the legal effect of his deed was to convey to Chambers one moiety only, being his own interest, that thereupon Chambers became tenant in common with Kittredge, and as the possession of one tenant in common is consistent as well with his own title as that of his co-tenant, it cannot be deemed in law to be adverse, and therefore is not to be considered as a disseisin, that Kittredge could not be considered disseised in his lifetime, that he died seised of a moiety in July, 1813, that the demandants entered within twenty years, in May, 1833, and so became seised in their own right. The Court are of opinion, that this position cannot be maintained ; that when one tenant in common conveys the whole estate in fee, with covenants of seisin and warranty, and his grantee enters, and claims and holds exclusive possession, the entry and holding must be deemed adverse to the title and possession of the co-tenant, and amount to a disseisin. The case finds, that from the conveyance in 1782 to Chambers by Benjamin Melvin, Chambers and those claiming under him, including the tenants, have had exclusive and undisturbed possession to May, 1833, when the demandants entered ; which was a disseisin. It has already been decided, in one of the causes involving questions upon this same title,^* that where there is tenant by the curtesy initiate, a disseisin affects the right of the wife as well as that of the husband, that by force of the statute, in consequence of her disability of coverture, she has ten years in addition to the limited term of twenty years, to enter and regain her seisin. In this case, more than thirty years elapsed, after the conveyance to Chambers, before the death of Kittredge, so that at his death his wife’s right of entry was already gone ; but if she had had any right of entry, she never exercised it. The demandants therefore had no right of entry, as heirs to their mother or otherwise, at the time of their actual entry, and of course acquired no seisin thereby.

Demandants nonsuit

* See Melvin v. Locks and Canals, &c. 16 Pick. 161.