Curry v. Dorr

Trust. Frauds, Statute of. Nuisance. Negligence, Of one owning or controlling real estate. In an action for personal injuries alleged to have been sustained by reason of a defective condition of the defendant’s land at its junction with a public sidewalk, where it appears that at the time of the accident the land in question was held by a person other than the defendant under a deed absolute on its face, under R. L. c. 147, § 1, the plaintiff cannot show by oral evidence that the defendant formerly owned the land and conveyed it with an understanding of the parties to the conveyance that the defendant should retain the beneficial interest in the land and should receive the rents and profits ; but, if the plaintiff could prove such a beneficial interest in the defendant, that would not make the defendant liable for injuries caused by the alleged defect without showing that the defendant was in occupation of the land or had undertaken its management and control.

Tort, against Morris Dorr, Frank B. McQuesten and Edward A. Bangs, for personal injuries alleged to have been sustained by the plaintiff on November 8,1903, from tripping over a step or, ridge in the pavement on land at the corner of Huntington Avenue and Gainsborough Street in Boston at a point where the land alleged to belong to the defendants adjoined the public sidewalk of Gainsborough Street. Writ dated January 12,1904. In the Superior Court the case was tried in May, 1906, before Wait, J. There was evidence from which a jury could find that the plaintiff was in the exercise of due care and that the premises alleged to belong to the defendants were in a defective condition. During the trial the plaintiff discontinued against the defendant McQuesten, and at the close of the evidence the judge ordered a verdict for the defendant Dorr. The plaintiff was about to call the defendant Bangs as a witness for the purpose of showing his ownership of the premises, when that defendant’s counsel objected to the defendant Bangs being asked whether he owned the property on the ground that the paper title was in one Barlow, and that Barlow owned it at that time, and oral evidence was not admissible to show that the title was in somebody else. It being admitted that the paper title was in Barlow, the counsel for the defendant Bangs made the following statement: “The paper title shows a conveyance from the defendant Bangs, Edward A. Bangs, to Morris Dorr by quitclaim deed dated November 10, 1902, recorded November 10, 1902, and a conveyance from said Morris Dorr to Robert S. Barlow by quitclaim deed dated July 1, 1903, and recorded August 17,1903, there being no change in the title subsequent to that date and before the date of the accident. The plaintiff’s attorney would show by this witness, Bangs, if he were allowed to testify, that the property was held by;the said Barlow for him, he having the rents and profits of the estate, the said Barlow and the said Dorr having no beneficial interest in the property.” Thereupon the judge said, “ I rule that the witness may answer, and save the exception of the defendants Dorr and Bangs.” There was no evidence tending to show the defendant Bangs’s title to the property or his interest therein except as above set forth. The defendant Bangs asked the judge to rule as follows: “ That upon all the evidence the plaintiff is not entitled to recover. “ That upon all the evidence the jury would not be warranted in finding negligence upon the part of the defendant Bangs.” The judge refused to rule as requested and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $2,575. The defendant Bangs alleged exceptions, which were allowed by Wait, J., on September 20, 1911.