Miller v. Miller

32 Mass. 57

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1833
• Status: Published

Opinion

Wilde J.

delivered the opinion of the Court. This is a writ of entry, in which the demandants demand an undivided moiety of each of two several parcels of land, and count on the seisin of John Miller, their father, alleging, that he died seised in 1818, and that thereupon the premises descended from him to the demandants. The tenant pleads, that John Miller, the father, did not die seised of the demanded premises, and upon this plea issue is joined. The question is, whether the facts agreed maintain the issue on the part of the demandants ; and we are of opinion, that they do, as to the parcel of land described in the first count; but that they do not, as to that described in the second count.

It is agreed, that in 1786, John Miller, the demandants’ grandfather, and one Peter Miller, entered on the first described parcel of land, and erected a corn-mill thereon, which they continued to occupy in common until the death of the grandfather in 1807 ; and that after his death, the demand-ants’ father entered and continued to occupy the premises in common with Peter Miller until 1816, when the dam broke and the mill ceased to operate.

This uninterrupted possession of thirty years' continuance, is abundantly sufficient to maintain the issue on the part of the demandants, and it is unnecessary for them to go further back in tracing their title.

It has been contended by the counsel for the tenant, that the demandants’ grandfather acquired no seisin by his entry and occupation, because he entered under his father, who was the owner of the estate ; but this cannot be maintained on the facts stated.

If the great-grandfather agreed to the grandfather’s entry, it was not agreed that he should enter under him, but he entered and continued to occupy in his own right ; and moreover the great-grand father was not, at the time, the owner of the estate, but had before conveyed it to his daughters ; so that his agreement to the entry and occupation was no more than the agreement or permission of a stranger, and could, on no legal principle, give a seisin to him against the clear intention of the parties.

Then it was argued, that the grandfather devised one.half of the demanded premises to his widow while she remained his widow, and that the share thus devised cannot be recovered in this action, although she has since deceased, and the demandants’ father was the residuary devisee. But it does not appear, that the widow ever entered under this devise and became actually seised. The demandants’ father was actually seised of the whole moiety demanded, with the consent of Peter Miller under whom the tenant holds, and this actual seisin is sufficient to maintain the issue on the part of the demandants, if there were no other evidence of title. The widow’s title, whatever it was, has been terminated by her death, and a mere technical objection, which can only turn the demandants round to another action for the recovery of a part of their demand, is not to be encouraged ; and as the tenant, by his plea, has rested his defence on the denial of the ■seisin of the demandants’ father, it is sufficient for the demand-ants to show his seisin ; and whether it was rightful or not, is immaterial.

As to the parcel of land demanded in the second count, it does not appear that the demandants’ father was ever seised. Their grandfather had a grant of a moiety of an old mill Standing on some part of this parcel in 1775 ; but this mill was abandoned in 1786. No land was granted eo nomine, and if the mill site passed, it was as incident to the mill; and that being abandoned, the title failed.

Judgment for the demandants on the first count.