Hasty v. Johnson

Mellen, C. j. delivered the opinion of the Court hs follows. In this action two pieces of land are demanded; and the tenant claims to hold them under different titles. The first under a title derived from himself as administrator of George Johnson his father, and father also of the wife of William Hasty. The second piece under a conveyance from the intestate himself. The original title of George Johnson is not disputed; and therefore, as one of the demandants is his daughter and one of his heirs, the demand-ants are entitled to recover, unless the title to both the tracts demanded has been legally conveyed to the tenant. This action was commenced Feb. 18, 1823. In June 1804, the tenant was duly licensed to sell so much of the real estate of said George Johnson as would raise a sum sufficient to pay the amount of the intestate’s debts; which amount is not particularly stated in the report. A sale of the first tract was made on the 23d of Jlugiist 1804,' to Seth Winship; and on'the 24th, a deed thereof was given to him by said administrator; and on the same day said Winship conveyed the same to the tenant in fee by his deed of that date ; which deeds were duly acknowledged and recorded. The deed purports to convey to said Winship twenty-four acres in common- and undivided with the residue of the tract of which it is a part. The first objection to this deed is that the administrator, Johnson, gave no bond to the Judge of Probate prior to the sale. We do not sustain this Objection. The first section of the statute of Massachusetts 1783, ch. 32, under which the sale was licensed, does not require any special bond; though a usage has prevailed to demand and receive one. Such special and additional bond is only required when a sale of the whole estate, or of more than is necessary for the payment of debts, is considered advisable, to prevent the injury to the residue by means of such partial sale, as provided in the second section of the said statute. The second objection is, that there is no direct proof that legal notice was given of the intended sale. This is apparent from the report; but it is urged by the counsel for the tenant, that the Judge, instead of deciding against the legality of the sale, should have left the evidence of notice, such as it was, to the consideration of the jury, with instructions to them that they might, from [287] the circumstances actually proved, presume that the notice bylaw required, was given, after the lapse of nineteen years; and he has cited several cases in support of this position. Most of these have no relation to conveyances of the kind in question. Coleman v. Anderson was a case of presumption afterthe lapse of more than thirty years. So Pejepscot Proprietors v. Ransom was a case where the collector’s deed was made in the year 1780. It is true that in the case of Blossom v. Cannon the Court said a jury might presume that the collector had been sworn after a lapse of about seventeen years. The cases above cited relate to sales by collectors of taxes; not executors or administrators. In Gray v. Gardner, the question arose upon a sale by an administrator, which had been made more than twenty years before the suit;' and the jury were permitted to presume that notice of sale &c. was duly given; and though there was much deficiency in the evidence on this point, still, many attending circumstances were noticed by the Court, as calculated to aid and strengthen the presumption. And beyond all this, much reliance was placed on the circumstance that at the time of the sale there was no law in force pointing out the mode of perpetuating the evidence of the transaction. The law on that subject was passed Neb. 14, 1789, and by means of it the present tenant might have easily preserved record evidence of the regularity of his proceedings, if they were regular. Considering this circumstance, and also the fact that he himself was the administrator who made the sale, it would seem that there is less room, than in common cases, to indulge presumptions in favor of one who seems to have been very inattentive in the discharge of his duty in this respect. If a man shall not take advantage of his own wrong, it would seem that he who has been negligent in respect to his own duty and interest, has less claims than third persons have upon the Court or the jury for the aid of presumptions in favor of his care and correctness. We are therefore strongly inclined to believe that this objection is fatal, as regards the first tract of land demanded; still we do not mean to give a definite opinion on this point, or to place the decision of the cause as to this tract upon the ground above stated; because we think that on another principle the sale of the twenty four acres is illegal. The deed of the admin [288] istrator purports to convey this piece in common with the residue of the tract. ' The tenant’s counsel has argued that from the writ the fact appears otherwise. We do not think so. Besides, the tenant is estopped by his own deed to say that the conveyance was in severalty. We are not aware of any authority which one man has to convert the sole tenancy of another into a tenancy in common except in the case provided for in the 29th sec. of the act of 1821, ch. 60, or how a tenant in common can convert his estate into a several tenancy, without the consent of his cotenant, or by process of law. A sole owner may do it himself; but the statute under the supposed authority of which the sale in question was made, gives no such power in terms; and the language of it seems evidently to have respect only to a sale of a part by metes and bounds. By way of illustration, it may be observed that when a creditor ¡has an execution against a debtor who owns real estate in common, if he would extend his execution on this estate, he must levy on a part in common. Baldwin v. Whiting & al. 13 Mass. 57. So if the debtor owns in severalty, the creditor must levy on a part in severalty. So if a creditor would extend his execution on estate of which his debtor was sole seised at the time of his death, he must levy his execution on a part in severalty, and by metes and bounds, unless he should levy on the whole, or the cases should fall within the provisions of said 29th section. We do not perceive that an administrator has any more power than a creditor to change the tenure. The words of the first section above quoted are — “ and every executor or administrator, being ££ so licensed and authorised as aforesaid, shall and may, by virtue ££ of such authority, make, sign and execute, in due form of law, “ deeds and conveyances for such houses, lands or tenements as ££ they shall so sell, which instruments shall make as good a title ££ to the purchaser, &c.” as the testator or intestate had. The above expression ££ such houses, lands or tenements” would not be correct, if a sale in common had been contemplated. The proper language would have been ££ deeds and conveyances” of the proportion ££ of such houses, lands and tenements as they shall so sell.” In the case Drinkwater v. Drinkwater 4 Mass. 354, Parsons C. J. when speaking of a sale of real estate by an administrator on license, and.the effect of such sale says — ££ And the [289] “ purchaser, by virtue of bis deed, may lawfully enter into the “ lands sold; avid may count on his entry as a lawful seisin, and “ try his title if it is disputed.” The defence, therefore, fails as to the first tract. As to the second tract, it is important to notice the terms of the deed from the intestate. By this he conveyed “ all his right, title and interest in and to the falls at Horse- “ Beef so called; together with a right in the dam and booms; “ and a right to the road and landing to haul logs as has been cus- “ tomary. ” By the terms of this deed, the conveyance of the falls, dam, and booms is in fee simple. But when speaking of the road and landing, the grantor conveys nothing more than a right to pass over them for the purpose of hauling to and from the mills or falls as had been customary. This is a mere easement — not an estate in fee, or a freehold. The tenant by pleading the general issue, admits himself to be tenant of the freehold, and to claim and defend such an estate. Cases need not be cited to so plain a point. As the deed in question does not convey such an estate, it does not support the defence, or disprove the demandant’s title. But it further appears that this second tract, claimed as part of the landing, has been distinctly known for more than forty years, and the case finds that it never was appurtenant to any of the mills. The deed to the tenant was given in 1804, and it does not appear that any lumber had been laid upon this land by the mill owners, more than fifteen years next before the trial — so that it maybe doubtful whether even the easement can be claimed on what is now demanded as the second tract. However, if it can be, the fee of the land covered by the road and composing the landing, on the death of George Johnson, descended to his heirs at law, subject to the easement, unless it has become extinguished by non user or waiver. If it has not, an action may lie against those who may disturb him in the enjoyment of it. We cannot sustain the motion for a new trial. Judgment on the verdict'.