Hastings v. Hastings , 110 Mass. 280 ( 1872 )

Chapman, C. J.

The deed of William Babcock to his son Jonathan, of September 21, 1853, described “ one undivided half of the farm on which I now live, situated in the northerly part of Berlin aforesaid, and in the southwesterly park of Bolton, and is the same which was deeded to me by Jonathan Merriam, March 15, 1810, reference being had to said deed, which is recorded,” &c. The deed of Jonathan Merriam referred to did not include the land in controversy, but that land had been conveyed by Merriam to Babcock by deed dated January 11, 1810. At the date of the deed of William to Jonathan Babcock, both lots were included in the farm on which William lived, and his deeds from Merriam had been made long before, and nearly at the same time, and both lots had continued to be a part of his farm. His deed to Jonathan is to be construed most strongly against himself, and we think the words “ the farm on which I now live ” must be governed by the rule laid down in Melvin v. Proprietors of Locks & Canals, 5 Met. 15, and are not to be restrained by the reference to Merriam’s second deed. He took back a bond with condition that Jonathan should deliver to him annually during his natural fife one half of the produce of the land conveyed, and a mortgage to secure the bond.

On October 20, 1853, William gave to Ms other son, William Thomas, a deed of land described as follows: “ One undivided half of the farm on which I now live, situated in the northerly part of Berlin aforesaid, and in the southwesterly part of Bolton, meaning to convey all that remains of said farm after the convey* anee which was made to Jonathan Babcock on September 21, 1853; for other particulars reference being had to said Jonathan’s deed.” At the same time he took from William Thomas a bond conditioned to deliver to him annually during his natural life one half of the produce, and a mortgage to secure the bond.

The two sons thus became tenants in common of the farm, subject to the mortgages given to their father. . On March 31, 1855, William Thomas, in consideration of §900, quitclaimed to Jonathan all his interest in the farm except the Hoar lot, making no reference to his mortgage, and with special covenants of warranty against all persons claiming under him ; and Jonathan gave him an instrument under seal, agreeing to do and perform all that William Thomas was bound by his bond to do and perform, and to exonerate and save him harmless, but making no reference to the mortgage; and the agreement was not recorded. Jonathan became entitled thereby to the whole farm except half of the Hoar lot, subject to the two mortgages. By a writ of entry brought soon afterwards, namely, on June 4, 1855, William, the father, foreclosed Jonathan’s mortgage, obtaining possession of the farm except the Hoar lot and Carter lot. But on May 1, 1856, he quitclaimed to Jonathan his interest in the whole farm, including the Hoar lot, with special covenants of warranty against all persons claiming under Mm ; and at the same time took back a mortgage of the whole farm, with full covenants of warranty, seisin, &c., conditioned to secure the payment of $637.51 in eight annual payments, "with interest. This transaction left the father no interest in the farm, except the last mentioned mortgage from Jonathan, wMch was paid and discharged August 20, 1862. As between William Thomas and Jonathan, the latter being bound to save the former harmless from Ms bond and mortgage, neither he nor his representatives could enforce the mortgage against William Thomas. It needed no conveyance to discharge his mortgage. When Jonathan conveyed to Christopher S. Hastings August 12,1858, his deed passed no title to the undivided half of the Hoar lot which William Thomas had reserved. When Cordelia Hastings entered upon the premises for breach of the condition of the mortgage of William Thomas, nothing passed to her thereby, for the mortgage had been extinguished; nor had the interest of William Thomas in the Hoar lot ever been reduced to an equity of redemption. As to those who had a right to claim performance of the condition from him, he had performed it.

The parties to this action are now tenants in common of the Hoar lot. One count in the plaintiffs’ declaration is for wilfully and without license cutting down, carrying away and destroying trees, timber and wood on land of the plaintiffs. The second count is for tort in the nature of trespass quare clausum fregit for the same acts. But the general doctrine is, that one tenant in common cannot maintain trespass against his co-tenant for an entry upon and enjoyment of the common property. 4 Kent Com. (6th ed.) 370. It is said that the answer sets up no allegation of title in the defendant, though it denies all the allegations of the plaintiff’s writ. But this denial is sufficient to put the plaintiff upon proof of his exclusive right to possession of the whole land. Rawson v. Morse, 4 Pick. 127. Nor can the count for wilful tres pass be maintained against a co-tenant, under the Gen. Sts. c. 138, § 10. This section was not designed to extend the remedy to cases where an action of trespass would not he by the common law, and the action is not brought upon the seventh section of the statute.

The easterly part of the locus is called the Carter lot; and some part of the wood was cut upon it. The defendant had no title to this part, and is at least liable in trespass for what he did upon it. Whether he is hable upon the tenth section of the statute must depend upon the evidence. The case must stand for trial ipon these principles. Ordered accordingly.