Dodge v. Lavin

Supreme Court of Rhode Island

Dodge v. Lavin

83 A. 1009, 34 R.I. 409, 1912 R.I. LEXIS 69

DecidedJuly 6, 1912

StatusPublished

This text of 83 A. 1009 (Dodge v. Lavin) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dodge v. Lavin, 83 A. 1009, 34 R.I. 409, 1912 R.I. LEXIS 69 (R.I. 1912).

Pincite

Opinion

Vincent, J.

These are three suits in equity. The. first is brought by John W. Dodge against Bridget Lavin and others and prays for the partition of a certain strip of land lying in the town of Barrington. The second is brought by Bridget Lavin and prays that certain deeds from the heirs of William H. Allin to Dodge may be declared void, either wholly or in part. The third prays that certain deeds made to Bridget Lavin may be declared valid.

All of these deeds relate to the strip of land which is the subject of the first named or partition suit and is shown in red on the accompanying survey.

These cases were, by agreement, heard together in the Superior Court upon bill, answer and proofs and were upon consideration of the same certified to this court for determination under Chap. 289, Sec. 35, Gen. Laws of 1909.

*410 Dodge alleges in his bill that one William H. Allin, at the time of his decease in 1894, was sole owner in fee simple of the strip of land referred to; that he died intestate leaving no children or direct descendants and that the title descended to collateral heirs. That afterwards some of these collateral heirs conveyed their interests to him; some to the respondent, Bridget Lavin, while others have made no conveyance. The title of the property is now vested as follows: John W. Dodge 101-108; Bridget Lavin 4-108; Nellie Frey 1-108; Grace I. Schiele 1-108, and Harry S. Kinnicutt 1-108. Dodge further alleges that said estate is a narrow strip of shore land, with certain riparian rights connected therewith; that it cannot be divided by metes and bounds so as to give to each of the co-owners their respective interests and he prays that such partition may be effected through a sale, &c.

Bridget Lavin alleges, in her bill, that the deed of August 22, 1857, from Thomas B. Allin and William H. Allin to Patrick Martin and Margaret Martin included the strip of land in question, and that upon the decease of her father and mother, the said Patrick and Margaret Martin, she inherited the same and has since been in continuous possession thereof. She also sets up a title by adverse possession.

She further alleges that after the decease of William H. Allin, Howard E. Allin, as administrator upon his estate, was authorized,by a decree of the Probate Court of the town of Barrington,' — on September 10, 1904, — to sell the interest of William H. Allin in a tract of land lying inland, to the east of her said land and still further away from Bullock’s Cove, and he accordingly advertised that he would sell at auction on August 2, 1898, the interest of William H. Allin in a parcel of land, with an oyster house and wharf, without claiming any right to sell, or indicating any intention of selling, the strip of land which was a projection of the Lavin land to the west; that at said auction sale Dodge purchased the southerly part of the parcel advertised, with an oyster house standing thereon, and a wharf extending therefrom into the Cove, and received a deed from the administrator, September 21, 1898, *411 but that no part of the shore, at the five rod projection of the Lavin land, entered into such purchase; that later by authority of the same decree he conveyed to Dodge by deed of April 10, 1899, a parcel of land next north of the former purchase, pursuant to an auction said to have been held April 4, 1899; that upon the second parcel of land Dodge erected valuable improvements; that said sales to Dodge were void because (1) the Probate Court had not authorized the sale of said property and (2) under General Laws, 1896, cap. 213,, the authority given to said administrator had expired; that, neither the complainant, Bridget Lavin, nor the administrator or heirs of William H. Allin disputed the right or title of Dodge to that portion of the property advertised by said administrator or which the deeds to Dodge purport to convey, or to the shore in front thereof.

Bridget Lavin further alleges that following the auction of August 2, 1898, Dodge, by filling, changed the wharf from a narrow plank structure to one of wide, solid construction; that in 1906 the said complainant, Lavin, first heard that Dodge claimed her shore at the said five rod projection; that Dodge having learned that his title to what the deeds, purported to convey to him was defective proceeded to procure a deed from certain heirs of William H. Allin, with the professed intention of perfecting such title, but that the description, in said last named deed, was drawn to include not only the property purchased by Dodge at the auctions of August 2,1898, and April 4, 1899, ‘but also the shore, at said five rod projection of the Lavin land, which was not included in the previous deeds to Dodge.

The complainant Lavin also sets forth in her bill, by way of averment upon information and belief, that the aforesaid deed from the Allin heirs was procured by misrepresentation and the withholding of facts; that the said heirs upon learning that they had executed the deed to Dodge through deception, executed and delivered, to the complainant Lavin, deeds releasing to her all of their interest in the strip of land in question.

*412 The complainant Lavin disclaims any desire to disturb the title of Dodge to the oyster house lot, fronting ten rods on Bullock’s Cove by five rods deep, with the oyster house and wharf as described in the deed from Howard E. Allin, administrator, to Dodge, or the dwelling house described in the later deed, but she prays that such deeds may be annulled in so far as they purport to cover the strip of land in question and to convey therein the interests of heirs of William H. Allin.

Joseph H. 'Marks in his bill in which Bridget Lavin is also a party complainant alleges that the deed of August 22, 1857, from Thomas It. Allin and William H. Allin to Patrick Martin and Margaret Martin conveyed a tract of land situ-, ated in Barrington; that the southerly five rods of the west end of said tract extended five rods further west than the balance of the west end of said tract, and he avers, upon information and belief, that the five rod projection extended to mean high water mark of Bullock’s Cove; that Patrick and Margaret Martin in their lifetime and Bridget Lavin, since their decease, have continuously been in possession of said tract to the present time. •

The Marks ’ bill further sets up title by adverse possession in Bridget Lavin; the appointment of Howard E. Allin as administrator of the estate of William H. Allin; the two auction sales and deeds from Howard E. Allin, as administrator, to Dodge; that such sales were unauthorized and void; that neither Marks, Bridget. Lavin nor the administrator or heirs of William H. Allin ever disputed the right or title of Dodge to the portion of the property which was advertised .and covered by the deeds made in pursuance of the two auction sales.

Further allegations in the Marks’ bill set forth the changes made by Dodge in the wharf; the receipt of information by Bridget Lavin in 1906, that Dodge claimed the shore at the five rod projection of her land; and that in 1908, Dodge had apparently learned for the first time that the two convey-

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