Barker v. Salmon , 43 Mass. 32 ( 1840 )

Putnam, J.

The demandants claim one fourth of a corn-mill with the appurtenances, and count upon the seizin of their ancestor, Benjamin Barker, within forty years, and the descent of the right to them as his heirs at law. It is agreed that the demandants are the heirs at law of said Benjamin, and the question is, whether or not, from the facts which are proved or admitted in the case, the alleged seizin of the ancestor is to be legally inferred. He did become seized of the premises in virtue of the deed to him on the 10th of April, 1787, from Abel Baker ; and in the absence of any proof to the contrary, it is to be presumed that his seizin continued until his dea h. He died about three years before this statement of the case was made.

The case finds that the said Benjamin conveyed one eighth of the mill to Thomas Turner, on the 29th of January, 1796. And there was an agreement between the said Benjamin and his brother Isaac Barker, that the former should convey his remaining one eighth of the mill to the latter, about the same time that the former conveyed one eighth to Turner, viz. January 1796. But there is no evidence that Benjamin ever did in fact execute the deed of one eighth to Isaac. On the contrary, it is found that Benjamin, — on being asked by a daughter of Isaac, after his decease, about ten years ago, if her father had paid him for the mill, — answered “ Yes, but I never gave him a deed.” So that the evidence precludes any presumption that a deed was in fact given by Benjamin to Isaac according to their agreement. And the reason why it was not given may be satisfactorily inferred from the unwillingness of Benjamin to allow an account, which he owed to Isaac, to be considered and allowed as part payment of the price — the said Benjamin insisting upon having the money paid down. But however that may have been, we think there is not sufficient evidence to prove that the said Benpmin parted with his interest, in his remaining eighth part of tht mill, to Isaac by deed. The demandants therefore claim the one eighth of the mill, as heirs, and say that the occupation which Isaac had, and which the tenants have had, has been permissive, and not adverse. And if that be so, they may well recover. But on that part of the case, we think that the legal nference from the evidence is clearly in favor of the tenants.

It would seem that the said Isaac, volens nolens the said Benjamin, took the toll from the mill, after the agreement, and until the said Isaac conveyed the said one eighth of the mill to Simeon McFarlane, on the 16th of February, 1810. There is no evidence that either the said Isaac or the tenants ever attorned to the said Benjamin, or said or did any thing to show that they occupied by his permission. Indeed, the fact stated in the case, which has been somewhat relied upon to prove the claim of the demandants, viz. that in 1820 or 1821, after the mill was burnt, when the tenants were making- arrangements to rebuild it, the said Benjamin forbade them — shows that a state of hostility, rather than a relation of landlord and tenant, existed between them. There is no evidence that the said Benjamin ever received any toll or rent from the said Isaac, from 1796 to 1810, when Isaac sold and gave a deed of the premises to McFarlane. Nor did the said Benjamin ever receive any toll or rent from the tenants, or from those under whom they claim.

It was proved that about ten years ago, the said Benjamin, being at the mills, declared that he owned one eighth part of the mill privilege; and this has been relied upon as evidence of his continual claim. But the declaration was vain. He had then lost his right of entry. His brother Isaac, and those claiming under him, had been then in possession of the same one eighth part of the mill for more than twenty years, taking the profits to their own use. If the said Benjamin could then have maintained an action upon his own seizin within thirty years, he did not think proper to do so. And the reason is obvious. He knew his brother had paid him for the property, and that he and his assigns were equitably entitled to hold what they had so long adversely claimed and possessed. Benjamin lived about half a mile from the mill. He was present at the sale at auction of the same to the tenants, making no objection thereto. And the toll was taken under a claim of right by said Isaac and his assigns, under whom the tenants claim, from about the year 1796; certainly for more than forty years before the commencement of this suit.

The court, being authorized by the agreement of the parties to draw all the inferences from the facts, which the jury would be authorized to do, do therefore declare, that from these facts it would have been the duty of the jury to find a verdict for the tenants, on the ground that the seizin and possession of the said Isaac and his assigns under whom the tenants claim, had been continued adversely to the said Benjamin for more than forty years prior to his death.

It is therefore the opinion of the whole court that the demandants should become nonsuit.