Cummings v. Wyman

Of the evidence of an ouster, sufficient to bar a writ of entry. [Where a tenant in common enters into the actual and exclusive possession of the lands, taking the rents and profits to his own use, and openly asserting his own exclusive property in the lands, denying the title of any other person, it is an adverse possession, and ouster of the other tenants. — Ed.]

This was a writ of entry sur disseisin, wherein the said Mary demands against the said Eunice possession of one undivided sixth part of a piece of land in Woburn, in this county; and she counts upon her own seisin within thirty years, and upon a disseisin by the tenant. * October term, 1809, the parties entered into a rule [ *465 ] of court, by which they agreed to submit the action to the determination of Asahel Stearns, Esq., (counsellor of this Court;) and that he should have authority to ascertain the increased value of the demanded premises, by virtue of the buildings and improvements made thereon by the tenant and those under whom she claims, and also the value of the premises without the improvements ; and that the report of the said referee should have the same effect in law as a verdict of a jury would have had upon a trial of the action. The referee, at the request of the parties, reported the following facts, as proved or admitted before him: — “ Nathan Brooks, being seised of the demanded premises in fee simple, on the 9th of January, 1758, by his will, duly executed and since proved, among other things, devised the improvément of the said premises to Elizabeth, his wife, during the time of her being his widow, and then further devised as follows: — “ 1 My will is, and I do hereby bequeath to my only son, Nathan. five parts in eight of all my estate, except what is heretofore given away, and after my just debts, &c., are paid by my executors, item, my will is, and I do hereby give to my only daughter, Elizabeth, the remaining part, of my estate, &c. My will is, that, if my said son should die before the age of twenty-one years, or without heirs, or heirs lawfully begotten of his body, that his sister shall have all his part of said estate. And if my said daughter should die before she arrives to the age of twenty-one years, or without heirs, or heirs lawfully begotten of her body, then the whole of her portion to revert and turn back to her brother. And if they both should die before they or either of them come to the age above mentioned, or without heirs lawfully begotten of their bodies, then to be divided between my said wife, and each of my own brothers and sisters, my said wife to have a double share.’ * “ The testator died on the 25th of January, 1758, leaving his said wife, son and daughter, and seven brothers and two sisters of the whole blood, and one sister of the half blood. Elizabeth, the daughter, died February 12, 1758, under age, and without issue. Samuel, one of the testator’s brothers, died intestate, and without issue, in the lifetime of Nathan, the son. Isaac, another brother of the testator, died in the lifetime of Nathan, the son, and left issue one son and two daughters, of whom the demandant is one. And the said Nathan, the son, died on the 24th of April, 1774, under age, and without issue. “ After the death of the testator, his widow lived in the house, and continued in possession of the demanded premises until the 26th of April, 1764, when she intermarried with Zebediah Wyman, who immediately took possession of the demanded premises, and lived with his said wife in the house until August, 1774, when she died, leaving issue by the said Zebediah. “In the course of the years 1774 and 1775, the said Zebediah purchased in the shares of all the brothers and sisters of the whole blood, who survived the testator’s son, Nathan, except one ; and in 1782, he purchased in the remaining one, and also took a release of the testator’s sister of the half blood. “ Between the years 1775 and 1778, the said Zebediah made great improvements and alterations upon the premises, thereby making the same of more than twice the value they would have been without those alterations and improvements. “ The demandant, a daughter of Isaac, came of age in 1786, and had generally lived within a mile of the premises, until she married, in 1784, when she removed, with her husband, into New Hampshire, where he died in 1788. Soon after the death of her husband, the demandant returned from New Hampshire, and has resided ever since within half a mile of the premises, having married a second husband in 1790, with whom she lived about five years, when he died. * “During the minority of the demandant and her brother and sister, their guardian, or some friend on their behalf, made claim to a part of the demanded premises against the said Zebediah, who denied their right. Afterwards the parties, by agreement, consulted counsel, and were advised that the said minors took nothing by the said testator’s will. This opinion was acquiesced in until 1785 or 1786, when the demandant’s brother having come of age, he made claim, in behalf of himself and his sisters, to the said premises; and the said Zebediah denied their right, saying thane had bought in the shares of all the family who could get any thing under the will. He also made the same declaration several times to other persons. “ In April, 1793, the said Zebediah Wyman died intestate, leaving the tenant his widow, he having been in the exclusive possession of the demanded premises from the time of his intermarriage with the testator’s widow. In September, 1793, commissioners, appointed by the judge of probate, duly assigned the demanded premises to the tenant, as a part of her dower, out of the estate of her said husband. “ Ten days before the commencement of this action, viz., March, 1809, the demandant requested her agent to make an entry upon the premises; and he immediately entered into the house, and spoke with the tenant; but it did not appear that he told her he had come to make an entry in behalf of the demandant. “ The whole of the premises of which the demandant claims a part have been increased in value fourteen hundred dollars, by reason of buildings and improvements made thereon by the tenant, and those under whom she claims. And the value of the same premises, without these improvements, would have been eight hun dred dollars. “ Upon these facts, the referee is of opinion that the said Mary Cummings is not entitled to recover in this action. He therefore determines and awards that the said Eunice Wyman recover against the said Mary Cummings her costs of court, together with costs of reference, taxed at,” &c.