Winter v. Stevens

91 Mass. 526

• Court: Massachusetts Supreme Judicial Court
• Decided: January 15, 1865
• Status: Published

Opinion

Bigelow, C. J.

The instructions were correct. There was

no disseisin of Lane, the original owner of the fee, by the plaintiff. The former continued in actual possession of the premises down to the time when he conveyed them to the defendant. To constitute an actual disseisin there must be an ouster and dispossession of the true owner. There can be no disseisin sufficient to prevent the true owner from making a valid conveyance, without such actual ouster and dispossession. Therefore when two persons are in possession of land at the same time, under different claims of right, he has the seisin in whom the legal title is vested. Both cannot be seised of the same estate, claiming by separate and adverse titles. Consequently the seisin iii such case follows the title. Slater v. Rawson, 6 Met. 439, 444. Smith v. Burtis, 6 Johns. 218. 2 Prest. Abst. 286, 290. Anonymous, 1 Salk. 246. 4 Kent Com. (6th ed.) 482. The deed of Lane to the defendant could in no sense be regarded as a conveyance by a disseisee. It was a valid grant of land by the owner in actual possession of the premises.

it was not claimed at the frial that the plaintiff, at the time of the conveyance of the estate by Lane, was in occupation thereof under any written agreement or lease. By force and effect of the statute, Gen. Sts. c. 89, § 2, he was tenant at will only. On familiar and well settled principles, this estate was determined by the deed from Lane to the defendant, and the plaintiff thereby became a tenant at sufferance. Curtis v. Galvin, 1 Allen, 215, and cases.cited. As such, he was liable to be ejected by force, if it was used reasonably, without committing a breach of the peace, and was not'disproportionate to the exigency. Fifty Associates v. Howland, 5 Cush. 214, 218. Maeder v. Stone, 7 Met. 147. Exceptions overruled,