86 Mass. 150 | Mass. | 1862
There is a class of cases in respect to which the provisions of St. 1852, c. 312, § 52, reenacted in Gen. Sts. c. 134, §§ 49, 50, are very important. They are cases where a party in possession of real estate would be obliged to abandon his accustomed possession and use, in order to try the right of an adverse claimant. If, for example, an adverse claim is made to a part or the whole of a man’s homestead, he may treat the claimant as a disseisor by election, and bring a writ of entry against him to try the title ; but in order to maintain his action he must abandon the possession during the pendency of the action. For unless he does this, the tenant to the writ may plead, puis darrein continuance, that since the suit was pending he has entered upon the lands in question, and disseised the tenant. And if it appears that he has entered into the whole, or even a part, of the lands, the writ shall abate for the whole, provided it was an entry for the purpose of taking possession, and not a mere casual going upon the land. Stearns on Real Actions, 215, 216. It would be unreasonable and contrary to sound policy to require such an abandonment of his property in order that he may maintain an action to remove á cloud from his title. The statute was intended to meet cases of this character, and to compel the party asserting such a claim to abandon it, or bring an action to test it without unreasonable delay,
In the present case, it is admitted by the petitioners that there has been no actual use or possession of the premises by them since April 1, 1857, and the petition is sought to be maintained on the ground of the constructive possession which follows their paper title. The property consists of flats over which the tide ebbs and flows, and of which no one maintains a continuous possession; but they are generally left vacant. The court are of opinion that this is not such a possession as the statute intends. The petitioners may bring their writ of entry, to which the opposite party must plead, admitting or denying their title. 1 Gray, 416. And during the pendency of the suit they are not compelled to abandon any beneficial possession or use of the land in order to prevent the writ from being abated.
Petition dismissed.
