Towne v. Butterfield

97 Mass. 105

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1867
• Status: Published

Opinion

Hoar, J.

The demandant having the actual possession of the demanded premises, under a deed of warranty, and claim of title, had an actual seisin, by right or by disseisin, sufficient to maintain his action, unless the defendant can show a better title. Jackson on Real Actions, 4. Stearns on Real Actions, 239. The tenant, being let into possession by the demandant under a contract to purchase, became thereby tenant at will to the demandant. Gould v. Thompson, 4 Met. 224. The question then arises, whether the tenant, being lessee at will of the demand-ant, can be permitted to assert a title inconsistent with that of her lessor at the time of making the lease, having never surrendered the possession, and no eviction by the owner of a paramount title, or anything equivalent to such eviction having occurred? And we are all of opinion that she cannot. Lessee of Galloway v. Ogle, 2 Binn. 468. Binney v. Chapman, 5 Pick. 124. George v. Putney, 4 Cush. 351. 1 Washb. Real Prop. 357-359, and cases there cited. Francis B. Smith, being disseised, could convey no title to a third person not in possession; and until entry by him, or demand upon the tenant, the tenant’s possession was that of her landlord.

Judgment for demandant.