64 Mass. 241 | Mass. | 1852
The only title to the demanded premises, set up by the tenant, is one alleged to have been acquired by disseisin. To maintain this, it was proved that the husband of the tenant occupied an estate adjoining the premises in dispute, in the right of his wife for about twelve years, and in connection with this occupation of his wife’s land, that he also occupied during the same period, the parcel of land now claimed by the demandant. It also appeared, that the husband died intestate, and that upon his death, his wife continued the occupation of her own land, and of the premises in dispute, in like manner, until the present suit was brought, being a period of about eighteen years. Upon these facts the tenant claimed the right to annex her own possession to that of her husband, and thus establish an adverse use of the demanded premises for twenty years and upwards. The main question in the case is, whether this right can be maintained.
The general rules of law respecting successive disseisins, are well settled. To make a disseisin effectual to give title under it to a second disseisor, it must appear that the latter holds the estate under the first disseisor, so that the disseisin of one may be connected with that of the other. Separate successive disseisins do not aid one another, where several persons successively enter on land as disseisors, without any conveyance from one to another, or any privity of estate between them, other than that derived from the mere possession of the estate; their several consecutive possessions cannot be tacked, so as to make a continuity of disseisin, of sufficient length of time to bar the true owners of their right of entry. To sustain separate successive disseisins as constituting a continuous possession, and conferring a title upon the last disseisor, there must have been a privity of estate between the several successive disseisors. To create such privity, there must have existed, as between the different disseisors, in regard to the estate of which a title by disseisin is claimed, some such relation as that of ancestor and heir, grantor and grantee, or devisor and devisee. In such cases, the title acquired by disseisin passes by descent, deed, or devise. But if there ia
Applying these familiar principles to the case at bar, it will be found that the tenant shows no continuous disseisin of the demanded premises, of sufficient length of time to bar the true owner, because she cannot connect her own disseisin with that of her husband’s. As to the parcel of land in dispute, there was no privity between herself and her husband. He occupied it during his life, not by right of his wife, but by virtue of his own act of disseisin. His wife could commit no act of disseisin, till her coverture ceased by his death. She shows no deed or devise of the land to herself by her husband. Upon his death, therefore, the seisin was in his heir at law, or the seisin of the true owner revived, and the subsequent disseisin by her was her own separate act, unconnected with the previous disseisin of her husband. The tenant therefore fails to establish any title in herself to the demanded premises.
It was urged by the counsel for the tenant, that the right of the wife to dower, in land of which her husband died seised, would create sufficient privity of estate between them in regard to the land in question, to enable her to connect his possession of it with her own. But the answer to this suggestion is obvious. The right of dower confers no title to any part of the husband’s land after his death, until assignment of dower is made. Until then, the wife has no seisin, or right of entry, in any part of her husband’s land, and the heir can well maintain his writ of entry against her, to which her claim of dower would constitute no defence. Park on Dower, 334; Hildreth v. Thompson, 16 Mass. 191. It is a mere right, which does not ripen into a title, until some specific portion is set out and assigned as dower. If, therefore, such assignment would create a privity of estate with the husband, in the land so assigned, it is very clear that none such exists before assign
The remaining objection to the demandant’s right to recover is, that he shows no title to the land claimed, because the description in the deed from Nancy Brown to the demandant, by metes and bounds, does not include the demanded premises, and that the particular description is not to be controlled by the reference in the deed to the partition of the estate by the commissioners, and the bounds therein given, which do comprehend the premises in dispute. The principle on which this objection rests, is well founded, and were it applicable, would be decisive of this case. But upon comparing the metes and bounds given by the deed, with the plan referred to, upon which they are laid down, and which is also made a part of the particular description, it will be found that they do not correspond, and that it is impossible to trace out and mark the granted premises with intelligible certainty, by following the description contained in the deed. By reason of some unexplained error, the metes and bounds in that part of the description which applies to the demanded premises, are wholly uncertain, and it is impossible to ascertain by them the precise land granted by the deed. It is not a case, therefore, of two inconsistent descriptions, in which the general must yield to the particular, but of an uncertain and impossible description, which must be controlled by an intelligible, though general description, given by a reference to the grantor’s title by partition. Melvin v Proprietors of Locks and Canals, 5 Met. 15, 28. Judgment on the verdict for the demandant.
