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24 Mass. 169

Hurd v. Cushing

Massachusetts Supreme Judicial Court

Decided October 30, 1828

Massachusetts Supreme Judicial Court · decided 1828-10-30

<p>An agreement, partly verbal and partly in writing, was made between T and S, by which T was to furnish the materials and S the land for the erection of salt-works, to be owned by them in common, three fourths by T and one fourth by S, and each was to have the right of entering upon, repairing and using the salt-works whenever he should think it necessary. In pursuance of the agreement, S procured 0 lease of land to himself during the term of time that salt-works should be erected and used on the land. S afterward conveyed all his right, title and interest in an undivided fourth of the salt-works to C and his heirs, covenanting that he was seised in fee of the granted premises and warranting the same ; and C levied an execution on the other three fourths as the real estate of T, S and the lessor of the land acting as appraisers. The demandant then levied on the whole of the land and salt-works as the real estate of C, entered into possession and took the profits. Three fourths of the salt-works were afterward taken as personal property on an execution against T and sold to the tenant, and C made to the tenant an assignment of the fourth part which S had formerly conveyed to C, and the salt-works were then held and occupied by S and the tenant, pursuant to an agreement between them, until the death of S. In a writ of entry to recover the whole land, with the salt-works, it was held : —</p> <p>That S took by the lease an estate for life, determinable upon the salt-works ceasing to be used :—*</p> <p>That the demandant acquired by his levy all the original title of S in one fourth of the demanded premises, but that his right of action was destroyed by the death of S ; —</p> <p>That T was not a tenant in common of the land with S : —</p> <p>That C, by his levy, became actually seised by disseisin of three fourths of the land, but that this was a wrongful seisin, which was defeated by the subsequent entry of S : — and</p> <p>That C did not gain a title by estoppel as against S and his lessor by reason of their acting as appraisers in the levy of C’s execution against T.</p> <p>Where a tenant for life conveys “ all his right, title and interest55 in the land to the grantee and his heirs, with a covenant that he is seised in fee, only the life estate passes, for the covenant cannot enlarge the words of the grant so as to pass a fee by disseisin.</p>

Cited by 1 later decisions — most recently February 1909

1 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1828-10-30

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¶1The opinion of the Court was afterwards drawn up by

Wilde J.

¶2The demandant’s title, as appears by the facts agreed, is derived from one Thomas Cushing, and through him from David Thacher and Isaiah Smalley, three undivided fourth parts being derived from Thacher, and the remaining fourth part from Smalley. And as the titles of Thacher and *180Smalley depend on different principles, they will be consideren separately.

¶3It appears that on the 28th of December, 1807, an agreement was made between Thacher and Smalley respecting the erection and use of certain salt-works, then contemplated to be built, and which are now standing on the demanded premises. By the terms of this agreement Thacher was to furnish „Le materials for the salt-works, and Smalley was to furnish the land upon which they were to be erected. In pursuance of this agreement Smalley afterwards procured a lease of a tract of land, including the demanded premises, from one Ricketson the owner, by which the same was granted and demised to him for an indefinite period of time, and so long as the salt-works then intended to be erected should continue to be used. By virtue of this lease the legal estate was vested in Smalley during his life, determinable by his ceasing to occupy the salt-works. On the 8th of April, 1817, Smalley conveyed an undivided fourth part of the demanded premises to Thomas Cushing. This was intended as a mortgage or security, and a bond of defeasance was given by Cushing to Smalley, but as this bond was not registered, and as the demandant had no knowledge of it when he extended his execution on the premises as the estate of Cushing, it is very clear, we think, that his title cannot be affected by that bond.1 The demandant therefore acquired by the levy of his execution against Cushing all the original title of Smalley to an undivided fourth part of the premises ; and as to this part he would be clearly entitled to recover, but for the death of Smalley. By his death the estate of the demandant was determined, and his right of action destroyed. And this fact may be pleaded in bar of the action, or may be given in evidence on the general issue, if the parties so agree ; and it being thus agreed in this case, it is clear that the demandant’s title derived from Smalley can no longer be maintained. Jackson on Real Actions, 168.

¶4The same objection would apply to the title derived from Thacher, if he and Smalley were seised in common, as the demandant contends they were, by virtue of their agreement, and by the erection of the salt-works. We are however of *181opinion that Thacher had no legal title to the land ; and that, therefore, it is immaterial whether the salt-works are fixtures or not. 2 The legal estate was clearly in Smalley ; and if the works were fixtures, they passed with the land, and if they were personal property, the demandant acquired no title to them by the levy of his execution. All the right or interest which Thacher had in the land was a parol license to enter for the purpose of repairing and using the salt-works ; but this is not such a title as would enable him or his assigns to maintain a writ of entry. He was never seised, and therefore could not be disseised.

¶5Nor can the demandant recover on his title by disseisin, or by estoppel.

¶6True it is, that Cushing, by virtue of the levy of his execution against Thacher, became actually seised by disseisin, and this title passed to the demandant under the levy of his execution against Cushing. But this was a wrongful seisin, and was defeated or determined by the entry of Smalley. He entered in 1823, and since that time he and one Nathaniel Cushing, and their representatives, (the tenants being administrators of Nathaniel Cushing,) have occupied the premises ; so that it is clear that the demandant cannot now recover on a title by disseisin.

¶7Nor can he recover on a title by estoppel. Smalley and Ricketson were strangers and not parties to the proceedings between Thomas Cushing and David Thacher. They acted merely as appraisers, and had no right to object to the form of the proceedings. And besides, they might have been, and probably were, ignorant of their legal rights ; and they were not bound to inform themselves as to the irregularity of the proceedings. As to the deed from Smalley to Cushing, his right only passed by it, and not a fee by disseisin. The words of the grant are, “ all my right, title and interest, in and to one undivided fourth part,” &e. It is true that the language of the covenants is more extensive ; but this will not enlarge the words of the grant so as to work a constructive disseisin of the land.

¶8*182Upon, the whole, therefore, we are of opinion that the de' mandant is not entitled to recover, and according to the agree* ment of the parties he is to be nonsuited.

¶9 Judgment for tenants for costs

¶10 See Newhall v. Burt, ante, 159, note 2

¶11 See Chitty on Contr. (4th Am. ed.) 284 to 288, and notes.
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