Tisdale v. Brabrook

102 Mass. 374

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1869
• Status: Published

Opinion

Chapman, C. J.

This petition is brought under the Gen. Sts. c. 134, § 49, requiring the respondents to show cause why they should not bring an action to try their title to the real estate described, which is in possession of the petitioner. The respondents answer by disclaiming any present estate or right of entry in the premises. They admit that the petitioner is seised of an estate for the life of Sarah A. Brabrook, who is living, and claim only an estate in remainder after her death. This is a sufficient disclaimer; for the only writ which the respondents can bring to try their title is a writ of entry in conformity with the provisions of the Gen. Sts.. c. 134. In such an actior they must prove not only an estate, but a right of entry. § 7. Nor has it ever been true that a person having an estate in remainder after a tenancy for life could maintain an action at law to try his title till after the termination of the estate for life. Jackson on Real Actions, 17. Wells v. Prince, 4 Mass. 64. Wallingford v. Hearl, 15 Mass. 471. Until then, there was no disseisin or intrusion upon which he could declare.

C. A. Holbrook, for the petitioner. P. E. Aldrich, for the respondents.

Petition dismissed, with costs.