Field v. Inhabitants of Hawley

126 Mass. 327, 1879 Mass. LEXIS 251

• Court: Massachusetts Supreme Judicial Court
• Decided: March 17, 1879
• Status: Published

Opinion

Ames, J.

We do not find in the agreed facts anything that amounts to such an interference with the demandant’s possession of the premises as to entitle him to consider himself disseised for the purpose of trying his right in a writ of entry.

In Favour v. Sargent, 6 Pick. 5, it was held to be no sufficient objection to a general disclaimer, that the tenant had taken a deed of the demanded premises from a collector of taxes, without also showing that he had had possession under that deed. In Towle v. Ayer, 8 N. H. 57, Richardson, C. J., says, in behalf of the court, that “ it has never been held that mere words, or the taking of a deed of land without entry under it, can be considered as a disseisin. There must be some actual interference with the possession of land to constitute what may be considered by the owner as a disseisin at his election.” In McDaniels v. Reed, 17 Vt. 674, which is cited by the demand-ant, there was no disclaimer by the tenant, and the case was tried on the general issue. See also Allen v. Holton, 20 Pick. 458; Bates v. Norcross, 14 Pick. 224; Little v. Megquier, 2 Greenl. 176; Putnam Free School v. Fisher, 38 Maine, 324.

Upon the disclaimer, as the demandant has not brought his case within the Gen. Sts. c. 134, § 6, the tenant is entitled to judgment for its costs.

Judgment accordingly.