Sohier v. Coffin

Chapman, C. J. The demandants claim title under a mortgage from Coffin, and therefore they have joined Coffin in the suit, as they are permitted to do by the Gen. Sts. c. 140, § 8, though Coffin is not a tenant in possession. The tenants in possession are the heirs of John C. Parkinson, who died in January 1857. A few days afterwards the agent of Coffin called upon them and desired them to leave the premises. They refused to quit, and claimed title. Afterwards Coffin himself called upon them and wanted them to leave the premises. They 183 again refused, claiming title. He endeavored to buy them off, and they refused his overtures. They were thus in possession of the demanded premises, and claiming title adversely to him. There is nothing to show that they entered under him or by his permission. Indeed it is stated that their father was in possession for many years, claiming title, and that this was Known to Coffin in 1842. While they were thus in possession, namely, on September 12, 1857, Coffin made the mortgage to the demandants. If he had a right of entry, he might have entered upon the land and there delivered the deed, and his title would have passed. But as he did not enter, but delivered the deed while he was out of possession, and the tenants were holding the land adversely, his deed was inoperative to pass the title. Warner v. Bull, 13 Met. 1. All the grantees could acquire was a right to bring an action for possession in the name of their grantor. Cleaveland v. Flagg, 4 Cush. 76. The ruling is based upon the assumption that the title of Coffin was good, and that the tenants were mere disseisors; and upon that assumption it was correct. Much more would the deed of Coffin to the demandants be inoperative if no title had ever passed to Coffin; for in such case no action would lie even in Coffin’s name. It would be necessary to sue in the name of Otis or some other person who had good title. The facts stated in the report do not present a case of mere disseisin at the election of Coffin; but this was an actual adverse occupation and holding him out. See Washb. Real Prop (3d ed.) bk. 3, c. 2, § 7. Judgment for the tenants on the verdict.