Morris v. Callanan , 105 Mass. 129 ( 1870 )

Gray, J.

The tenant in this case has no ground of exception to the rulings or instructions of the judge who presided in the . superior court.

1. As real estate descends to heirs unless the owner devises it otherwise, the presumption of such descent can be rebutted only by legal proof of a will containing such a devise. In this case, no evidence was offered of the contents of the alleged wills, and no competent evidence even of their execution.

2. The ancient deed, made more than fifty years ago, of lands described therein as bounding on an old ditch dividing the inward and outward commons, was competent evidence, (although neither of the parties to this action claimed under it,) in connection with other evidence that the boundary line between those commons was an ancient ditch, to prove the location of that line. Sparhawk v. Bullard, 1 Met. 95.

3. The testimony introduced by the tenant to prove a disseisin tended to show no more than an entry upon the land in question, a cutting of wood and timber from year to year over the whole lot, and a clearing and cultivation of a portion of the land, without building upon or fencing or otherwise inclosing any part of it. To the extent to which the land had been cleared and cultivated, full effect was given to the disseisin relied on, by the ruling that “ twenty years of open, uninterrupted, adverse occupation of land under a claim of right would be sufficient to establish a title thereto.” The ruling that “there could be no adverse use of wild land or woodland,” considered as stating an abstract rule of law applicable to all cases, could hardly be sustained. But as applied to all the facts which the evidence tended to prove, the tenant has no just cause to complain of that ruling, or of any of the other instructions or refusals to instruct; for it is well settled in this Commonwealth that merely cutting wood and timber from wild land, and clearing and cultivating a part of it, are no proof of a disseisin beyond that part. Slater v. Jepherson, 6 Cush. 129.

4. The courts of this Commonwealth have power to allow amendments of verdicts, so as to express in legal form the issue actually tried and necessarily found by the jury. Gen. Sts. o. 129, §§ 34, 41. Clark v. Lamb, 8 Pick. 415. Chaffee v. Pease, 10 Allen, 537. By the deed of Justin Granger to bis four daughters, each took one fourth of the demanded premises. Upon the deaths of the other three, one half of the share of each, or one eighth of the whole, vested in the demandant, and a like share vested in the surviving brother. The three eighths thus coming to the demandant, added to the quarter originally conveyed to her, made five eighths, or thirty forty-eighths. The jury were therefore rightly instructed that she was entitled to recover that proportion, if anything; and their general verdict for the demandant (which, as originally returned, would seem to include the whole title to the land in controversy) was rightly amended and reduced by ordering it to stand for that proportion, without affecting so much of the verdict as related to the part disclaimed and as to which no real issue had been made.

Exceptions overruled.