Morey v. Haggerty

Deasy, J. In 1911 the testatrix Mary E. Callaghan gave certain bonds to her niece Pearl McPhilemy, now Mary P. Haggerty. Before the Justice hearing the case it was strenuously urged that this was a gift causa mortis, therefore revocable, and later revoked. The Justice found that “Mrs. Callaghan made an absolute gift of the bonds inter vivos fio Miss McPhilemy on Jan. 14, 1911.” This finding is presumably right and is supported by the testimony. The only other question is as to whether Mrs. Callaghan, having given the bonds away irrevocably, ever regained title to them. It is contended that Mrs. Callaghan had possession of the bonds at the time of her decease and had kept exclusive possession of them for so long a time and under such circumstances as to bar any legal action to recover from her either the bonds or their value. Such bar it is said in effect gives title recognized and protected both in law and equity. The principle thus contended for is well grounded in reason and authority. Possession of personal property so long continued and of such qualify and character as to bar remedies for recovery, in effect gives title. “The weight of authority is in favor of the proposition that, where one has had the peaceable, undisturbed, open possession of real or personal property, with an assertion of his ownership, for the period which, under the law, would bar an action for its recovery by the real owner, the former has acquired a good title.” Campbell v. Holt, 115 U. S., 620, 29 L. Ed., 483. “Where the statute would be a bar to a direct proceeding by the original owner, it cannot be defeated by indirection within the jurisdiction where it is law. If he cannot replevy, he cannot take with his own hand. A title which will not sustain a declaration will not sustain a plea.” Chapin v. Freeland, 142 Mass., 383. “It is well settled that the title to personal property may be lost or gained by six years adverse possession.” Merrill v. Bullard, (Vt.), 8 Atl., 157. R. S., Chap. 86, Sec. 85. But to have this effect it must affirmatively appear that the possession was other than permissive. Merely permissive possession however long continued will not give title nor bar remedies. In this essential particular the evidence fails to sustain the contention. [214] It indeed appears that Mrs. Callaghan had possession of the bonds for several years immediately preceding her death. They were kept in her own safety deposit box. She alone went to the box. She cut the coupons or had them cut. But all this may have been by Mrs. Haggerty’s consent. The coupons may have been collected for her benefit. The burden was upon the parties representing the estate of Mrs. Callaghan to prove not merely long continued possession, but such possession as bars remedies and gives' title. To determine otherwise would be to hold that any agent who for more than six years has possession of his principal’s bonds, cutting and collecting the coupons, may by showing such facts, make out prima facie title as against his principal. . Appeal dismissed. Decree affirmed.