Frye v. Gragg

Shepley, C. J. — This writ of entry has been commenced to recover a lot of land in the town of Dedham, called the Swamp lot. The demandant, on December 1, 1825, obtained a bond of the agent of the proprietors of that township for a conveyance of lot numbered twenty-four upon- conditions, which appear to have been performed. He claimed the Swamp lot as being included in lot twenty-four. The proprietors did not so regard it, and they conveyed it to Roswell Fitts on April 17, 1844. The tenant, according to the testimony, entered upon it in the autumn of that year by the permission of the demandant and has continued to occupy it. Fitts commenced a suit by writ of entry against the demandant and tenant to recover the lot, and upon certain facts agreed by the parties, and upon other testimony reported, a nonsuit was ordered in the year 1846. Whether the Swamp lot did or did not constitute a part of lot twenty-four, it appears to have been legally conveyed by the proprietors to Fitts ; for they might convey it to him, if they had before bound themselves to convey it to the demand-ant, who might have his remedy against them upon his bond. It is insisted, however, that the demandant had acquired a title to it by an entry and occupation of it as his own for more than twenty years before the conveyance of it was made to Fitts. The lot appears to have been during that time mostly uncultivated and unfenced. A witness states, that no one but the demandant had occupied it since the year 1821, and that he had cut upon it and had always fenced portions of it. This is not sufficient proof of an open, exclusive and adverse possession. If it could be so regarded, the testimony clearly proves, that the demandant did not claim to hold the lot ad [33] versely to the proprietors, but under his bond for a conveyance of lot twenty-four, and in submission to their title. He cannot therefore maintain this suit by virtue of any title acquired by disseizin and possession. He also claims to recover the lot by virtue of an alleged privity of estate between himself and the tenant, alleging, that the tenant entered into possession under him, admitting his title, and that he thus became his tenant, and that he is therefore estopped to deny that title. The testimony fails to establish facts, by which this position can be sustained. It is true, that he entered by the consent of the demandant, not, however, admitting his title absolutely but conditionally only, and under a verbal agreement to purchase of him, if he “heldit under the bond,” and stating that “he would go on and take it at his own risk.” No sum to be paid for it was agreed upon ; nothing was paid ; and no written contract was made. The conversation between the parties does not appear to have amounted to more than that the tenant might enter into possession of the lot and pay the demandant for it if he should hold it under his bond, and if he should not, the tenant should assume the risk of losing his improvements or of obtaining a title to it in some other way. To require the tenant to restore possession of the lot to the demandant, when ho has not obtained any title to it, would deprive him of a privilege secured to him by the arrangement, under which he entered upon it. The demandant never engaged to protect and secure the possession to the tenant, and he cannot deny to him the right to retain possession until he is able to convey the title. The tenant has never admitted a fact, which it is now necessary for him to deny to retain possession. This is the principle upon which an estoppel must rest, and he is not therefore estopped to deny the title of the demandant. The testimony offered and rejected was properly excluded. Nonsuit confirmed. Tenney and Wells, J. J., concurred.