Putney v. Dresser , 43 Mass. 583 ( 1841 )

Dewey, J.

The defendant insists that the action of trespass quare clausum will not lie upon the facts stated in this case. The position assumed is, that as to a moiety of the estate in the premises upon which the trespass is alleged to have been committed, the plaintiff’s right of entry was tolled.

By the principles of the common law, modified by the St. of 32 Hen. VIII. c. 33, and which were adopted and recognized, as a part of our legal code, until superseded by the enactment in the Rev. Sts. c. 101, § 5, if a disseizor had been in the peaceable possession of land, as such disseizor, for the space of fiva years next after the disseizin, and should die thus seized, and his estate descend to his heirs at law, it would bar the right of entry of the disseizee.

The defendant contends that the disseizin in 1818, by Moses Dresser and Aaron Dresser, the grantees in the deed from Moses Putney, was not a joint disseizin, or one which would create a joint tenancy in them, but only an estate as tenants in common. It is true that under St. 1785, c. 62,' the title in Moses Dresser and Aaron Dresser, if any had passed to them under their deed from Moses Putney, would have been an estate in common, and not in joint tenancy. But no title passed to them under that deed, their grantee having no title and no right to convey. As respects the plaintiffs, they were strictly disseizors, and as much so as if they had entered without receiving any deed. The inquiry then arises as to the effect of a disseizin by two or more persons. Littleton, § 278, says, “ if tw_. or three disseize another of any lands or tenements to their own use, then the disseizors are joint tenants.” There may be, therefore, a joint tenancy created by disseizin, as well as by a deed or devise. The St. of 1785, c. 62, applies only to cases arising under deeds and wills, leaving the cases of disseizin to be regulated by the common law. It seems to us, therefore, that the disseizin in the present case was a joint disseizin ; and being such, it was not competent for the disseizors to qualify it, and limit it to a tenancy in common, to the prejudice of the legal owner of the estate. If the estate of the two disseizors might be qualified, as between themselves and their heirs, and if the effect of their déed from Moses Dresser would have been to estop them from setting up, as against each other, an estate in joint tenancy, yet this should not be allowed to affect the disseizee, or be prejudicial to his rights.

If this be a correct view upon this point, then the death of Aaron Dresser did not bar the right of entry of the lawful owner of the estate, and he might well make his entry upon Moses Dresser, the‘survivor of the disseizors, and revest his possession, and thus entitle himself to maintain an action of trespass.

It was also objected to the maintenance of the present action, that the entry by the plaintiff was not effectual to establish his possession, by reason of the provision of the Rev. Sts. c. 119, § 8, in which it is enacted, that “ no person shall be deemed to have been in possession of any lands, within the meaning of this chapter, merely by reason of having made an entry thereon, unless he shall have continued in open and peaceable possession of the premises for the space of one year next after such entry, or unless an action shall be commenced upon such entry and seizin, within one year after he shall be ousted, or dispossessed of the premises.” Whether this, section was intended to apply to an action of trespass, we have not thought it necessary particularly to consider ; inasmuch as it seems to us that the section is to be taken to be a part of the new system introduced by the provisions of chapter 119 ; and being so, that the 11th section, postponing the time for its taking effect to the 31st of December 1839, applies as well to the 8th section as to the other limitations introduced into this chapter. Such being the construction of the statute, this objection cannot avail the defendant.

Judgment on the verdict.