Smith v. Guild

Tenney, J.

Jacob Clapp and Harvey Clapp, had an indefeasible title to the premises, as early as May 6, 1826, the day on which the release of Benjamin Hawes and James Hawes was made. No change in their title having taken place, they were the owners and tenants in common and undivided in equal moieties till the death of Jacob Clapp, which occurred in 1832. Jacob Clapp, by his will, dated May 8, 1832, and approved July 3, 1832, devised to his daughter Sukey Smith, the wife of the plaintiff, the improvement of the entire premises, during her life ; and the remainder in the whole to Harvey Clapp ; he also devised and bequeathed to Harvey Clapp, one fourth part of all the residue of his property, both real and personal, of which he was the owner at the time of his decease ; and the remaining portion of his property, real and personal, he devised and bequeathed to two other sons.

The death and the will of Jacob Clapp could not alone divest Harvey Clapp of the interest, which he previously had under the deed from Benjamin and James Hawes, in the premises. But it is a doctrine well established in equity and in law, that if one accept a beneficial interest under a will, he thereby bars himself from setting up a claim, which will prevent its full operation. Thellason v. Woodford, 13 Ves. 209; Hyde v. Baldwin, 17 Pick. 303 , Weeks v. Patten, 18 Maine, 42.

By the provisions of the will, instead of an absolute estate, in an undivided half of the premises, which he owned, Harvey Clapp obtained the whole thereof, after the termination of the particular estate in Sukey Smith, and other interests also, in the testator’s property, the value of which is not disclosed. The evidence is plenary, that he accepted what he regarded as a beneficial interest under the will. He treated the right in the entire premises, after the decease of Sukey Smith, derived by the will, as his own. According to the testimony adduced by the defendants, he negotiated their sale as early as 1836 ; and on April 1, 1840, he conveyed the whole of the premises to Sidney Smith, and took back a mortgage of the same to secure the notes given for the purchase money.

This is sufficient to show, that he accepted the interest under the will, as beneficial to him, and he is held by the principle adverted to, to confirm and ratify every other part of the will; and he cannot set up his former claim, though in other respects legal and well founded. In addition to this, the mortgage deed from Sidney Smith to Harvey Clapp, which is in the case, contains a recital that the premises therein described, which are identical with those in controversy, were conveyed on the same day to Sidney Smith, by Harvey Clapp ; and the right of Sukey Smith is excepted from the conveyance, and from the covenants of general warranty. The right of Sukey Smith under the will, which Harvey Clapp had confirmed, was the improvement of the premises during her life. The only interest of Harvey Clapp was under this mortgage deed, and he accepted it according to its terms. He is, therefore, barred of his original claim to one half the premises. He had no power to controvert the right of Sukey Smith under her father’s will, or to deprive her or her husband who was in possession, of any interest, which either of them had, by the operation of his original title in the premises ; or to enter into the possession of the same, during her life.

Harvey Clapp is proved to have died in the year 1840. Have the proceedings since his death changed the rights of the plaintiff? Edmund W. Clapp first obtained letters of administration from a Probate Court in this State, on April 2, 1850. But as administrator of the goods and estate of Harvey Clapp, who resided in Massachusetts at the time of his death and previously, but not under any appointment in this State, he instituted a suit in the county of Franklin, against Sidney Smith on the mortgage given by him to Harvey Clapp, for the purpose of obtaining possession for condition broken, and to foreclose the same. This action was entered at a term of the late District Court, holden for the county of Franklin, on the last Monday of September, A. D. 1848, and continued to the next term of the same Court, holden on the last Monday of March, A. D. 1849, when the defendant therein was defaulted, and the conditional judgment was rendered. The condition not having been fulfilled, a writ of possession issued, on. May 30, 1849; and upon it an officer returned, on June 4, 1849, that he had caused Edmund W. Clapp, administrator, to have possession of the premises described, by his agent Samuel E. Guild, who it appears had a power of attorney for such purpose, dated May 3, 1849, executed by Edmund W. Clapp, administrator.

Before this judgment, Edmund W. Clapp had no power as administrator of the goods and estate of Harvey Clapp in this State. Goodwin v. Jones, 3 Mass. 514. He was a stranger to the premises till that time. This judgment was limited in its effects to its own legitimate operations. It had no authority by implication. The one, in whose favor it was, could have no rights under it, beyond the power, which it conferred under the statute. It gave him no right to possession, until after two months, from the time it was rendered. The possession under it, given to one of the defendants as the agent of Edmund W. Clapp, was subsequent to the time alleged in the writ in this action, when a part of the acts complained of, were committed. , The case finds no other time, when they were actually done. And the possession given by the officer afterwards could be no justification.

If the alleged trespass was after the possession under the officer, as it is said for the defendants in argument, that it was, it could have no effect to relieve them from liability. The judgment was against Sidney Smith, upon his mortgage. At the commencement of this action, no privity existed between him and the plaintiff. The quitclaim deed from the former to the latter, pending the suit upon the mortgage, could take away none of the rights of the plaintiff previously existing, if it conferred none, and could yield none to Edmund W. Clapp. The officer not having removed the plaintiff from the premises, and the plaintiff not claiming to hold them by the deed of Sidney Smith, exclusively, his rights remained as they were before. It is insisted that the plaintiff, by acts and declarations, contained in letters, held the premises in submission to Harvey Clapp before his death and to Edmund W. Clapp since. No evidence in the case shows a valid surrender of his possession to either. It is true he treats Harvey Clapp as the owner of the land in some respects. This may have been from a misapprehension of his own rights, or with a view to the acquisition of the title to the remainder, after the death of his wife. And if the title had been in Clapp at the time, and the plaintiff was now setting up an adverse possessory title, the possession of the plaintiff might be qualified by these acts and declarations, and be regarded in consequence thereof as ih submission to his superior right; but when it is seen, that Clapp had no title during the life of Sukey Smith they cannot confer one.

The plaintiff being in possession at the time of the alleged ' trespass and for a long time before, and Edmund W. Clapp, as administrator or otherwise having no present interest in the premises as against the plaintiff, or not claiming under any one, having such interest, he could give no rights to the defendants to perform the acts done. They were an injury to the plaintiff’s possession and a violation thereof.

Judgment upon the default, and

damages as entered on the docket.

Wells, Howard and Appleton, J. J., concurred.