Simpson v. Dix

Soule, J. If the demandant had any title whatever to the demanded premises on the facts disclosed by the bill of exceptions, the tenant had none, because the tenant’s claim of title was based on the ground that he was grantee of the owner, and that the demandant’s grantor and devisor never had any title to the premises. The action was not brought, therefore, for the foreclosure of the mortgage held by the demandant, but to defend the possession and right to possession under his entry, against a stranger who was in, claiming title. It was unimportant to the tenant, therefore, whether the demandant was mortgagee or absolute owner of the fee. He could maintain his action against a stranger precisely as well in the one case as in the other. Haven v. Adams, 4 Allen, 80. Richardson v. Hildreth, 8 Cush. 225. Fletcher v. Cary, 103 Mass. 475. So far as relates to his rights as mortgagee, the demandant’s action stands merely as that of one having a possession earlier than that of the tenant, who has no title. Hubbard v. Little, 9 Cush. 475. When the mortgagee brings an action to foreclose his mortgage, [184] he must count on his own seisin in mortgage. Gen. Sts. c. 129, § 3; a. 140, § 3. This provision is reasonable, because the tenant in such case is entitled to have a conditional judgment entered. But when the controversy is between a mortgagee in possession and a stranger to the title who disseises him, the statute provision does not apply, because it was not intended for such a ease and would have no significance, and would serve no purpose. The term “ Junior ” is no part of the name of a person. It is a term used to designate and describe the person, as the name of his residence is sometimes used for the same purpose. Commonwealth v. Perkins, 1 Pick. 387. Cobb v. Lucas, 15 Pick. 7. There was no presumption, therefore, that if Daniel Eastman, the son, bought the demanded premises in the name of Daniel Eastman, without the designation of “ Junior ” added to the name, he intended that his father should take the same. The refusal so to rule was correct. The fourth and sixth rulings asked for were properly refused. There being evidence that Daniel, the son, paid for the demanded premises, and the conveyance having been taken in a name which was his as well as his father’s, and there being evidence tending to show that Daniel, the son, acted merely as agent for his father in the matter, and that the father paid for the land, it was a pure question of fact whether the father or the son was the purchaser of the land and the grantee in the deeds by which it was conveyed. Kingsford v. Hood, 105 Mass. 495. It was not necessary that the demandant should set forth in his writ or declaration that he was trustee. He stood on his legal title, a seisin in himself, against one whom he alleged to be a disseisor, and who was a stranger to the title, as the demandant claimed it to be. The bill of exceptions does not disclose the fact, if it was a fact, that the cestui que trust was dead before the action was brought, or before it was tried, and we cannot assume that there was error in any ruling at the trial as to the continuance or termination of the trust estate. The ruling was correct that the demandant could maintain his action 'as to the lands included in the mortgage through his title as mortgagee, and as to all the demanded premises as trustee under the will of Daniel Eastman, Junior, it having been found [185] as a fact that Daniel Eastman, Junior, was the purchaser of the lands and the grantee intended in the deeds. It is clear from what has already been said, that the will of Daniel Eastman, Junior, and his mortgage to the plaintiff, were competent evidence. The admissions of the elder Eastman, under whom the tenant claimed title, made while he was occupying the premises with his son, that they belonged to his son Daniel, were competent under a familiar and well-settled rule of law. Osgood v. Coates, 1 Allen, 77. The deposition of Daniel Eastman, Senior, was properly excluded. It was offered as a deposition taken according to the provisions of law for perpetuating testimony, on application to this court, and under a commission from it. Such depositions are evidence only when all the requirements of the statute have been complied with, and the omission of anything named in the statute as to be done in perfecting them entirely destroys their competency against any party objecting to them. This is the rule as to depositions taken to be used in actions pending. Simpson v. Carleton, 1 Allen, 109. It applies with even more force to depositions taken in perpetuam. Such a deposition taken under a commission from this court is evidence only in case it has been recorded in the registry of deeds by order of the court. Gen. Sts. c. 131, §§ 57, 58. The deposition of Eastman was not ordered to be recorded, but a motion to have it recorded was denied by the court. This prevented the deposition from becoming a valid deposition in perpetuam, and the subsequent recording of it, without the order of the court, did not give it any validity. Exceptions overruled.