100 Mass. 177 | Mass. | 1868
The somewhat complicated series of conveyances under which the tenant now claims compensation for improvements is set forth at length in the former report of the case, 13 Allen, 213. The original conveyance to Amasa Wales, and his wife, the present demandant, created a joint tenancy, and was made in 1837. Amasa Wales died in February 1865; and all his title to the demanded premises has been held by the tenant and those under whom he claims, since the conveyance to Cheever in April 1846. To entitle himself to an allowance for improvements, the tenant must show, either 1. that he and those under whom he claims have held and possessed the premises for six years before the commencement of the action; or 2. although they have not been so held for six years, that he holds them under a title which he had reason to believe good. Gen Sts. c. 134, §§ 18, 19.
So in the present case, the original estate of Amasa Wales passed to the tenant through the mesne conveyances, and he and his grantors held that estate adversely, that is, as their own. The estate of Mrs. Wales, the demandant, did not pass; and her title became complete on the death of her husband; but in the mean time they had held under a deed of warranty of the fee, and therefore adversely to her right.
The effect of the decision in Plimpton v. Plimpton is, in short, that the possession of a tenant may be so far adverse as to entitle him to compensation for betterments, although he holds a limited estate which entitles him to the possession at the same time, so that his possession does not constitute a disseisin of the tenant in remainder; if his holding is not in fact and intent under the partial and rightful title, but under a claim of the entire interest. See also Heath v. Wells, 5 Pick. 140.
But on the second ground furnished by the statute we think he tenant is entitled to the compensation for improvements:
We have therefore no doubt that the tenant is entitled to an allowance, in the manner provided by statute, for the improvements made by himself and by Leonard, although made while the title derived from Amasa Wales was valid and subsisting.
But the improvements made by Amasa Wales stand upon a different principle. The true construction of the statute we think must' obviously be, that it is only improvements made while the possession is adverse, or under a title which he who makes them has reason to think good, which are in any case to be allowed, whether made by the tenant or those under whom he claims. The report of the assessor does not expressly find whether the improvements made by Amasa Wales were made at the first or second time at which he held the premises. From the consideration named in the deeds we should infer that it vas during the earlier possession. If this be so, we can see no cause for believing that at that time he held the estate adversely to his wife, or that he had any reason to believe his title better than that of a joint tenant with her. Under those circumstances, the improvements which he made would inure to their
Judgment will be entered in accordance with these views.