Leary v. Duff

Devens, J. The petitioner has shown that she was, at the time of filing her petition, in sole and exclusive possession of the premises described, claiming title thereto. On this point, the finding of the presiding judge is conclusive. India Wharf v. Central Wharf, 117 Mass. 504. It is the contention of the [149] respondent, that, as she has failed to satisfy the presiding judge that she had acquired a complete title by adverse possession, and as he declined thus to find, it was not his duty, nor was it within his discretion, to order the respondent, who himself asserts title to two thirds of the premises, to bring an action. We shall not have occasion to consider whether it was the duty of the judge to make the order in question, as a majority of the court are of opinion that it was within his discretion so to do. Where the petitioner is not in exclusive possession, it has always been held that this proceeding cannot be maintained, as in such case there is no reason why he should not himself take the initiative in ascertaining the validity of .his title. Tompkins v. Wyman, 116 Mass. 558. India Wharf v. Central Wharf, ubi supra. But where the petitioner is in possession, and there is an adverse claim which is the subject of dispute, it has never been held that the court must be satisfied, even prima facie, that such claim was untenable, before ordering the respondent to bring an action. It appears to have been assumed to be otherwise. Thus, in Brown v. Matthews, 117 Mass. 506, while the only point decided is that the petitioner had sufficiently proved that he was in possession, the titles claimed by the parties appear to have been from distinct grantors, and, in making the decree that the respondent should bring an action, the court in no way passed upon the inquiry which was the better title. The object of the St. of 1852, c. 312, §§ 52,53, (Pub. Sts. c. 176,) is to quiet the titles of those in possession of real property. If the alleged adverse claimants disclaim title, they are entitled to recover their costs; if they assert it, the court may make such decree respecting the bringing and prosecuting an action “as may seem equitable and just.” The difficulties that attend the attempt of a party in possession to try the asserted right of an adverse claimant thereto are serious. While he may treat the adverse claimant, at his election, as a disseisor, and himself bring an action to try the title, he can only do so by abandoning his possession during the pendency of the action. Munroe v. Ward, 4 Allen, 150. To compel the petitioner to prove that his title is better than that of the respondent, to the satisfaction of this court, to which this petition must be addressed, when [150] that question must afterwards be fully tried in the Superior Court, can hardly have been the intention of the statute. It is sufficient if such a case is presented at the hearing in this court as shall satisfy the presiding judge, in the exercise of his discretion, that it is equitable and just that the respondent should bring an action to establish his claim, or should relinquish it. It is not of importance that the title asserted by the petitioner rests upon an alleged open and exclusive adverse possession of more than twenty years, and is a title by disseisin, while that of the respondent is what is often termed a paper title. When established, each is of full force and validity. A title by disseisin is not necessarily a wrongful one, nor is it to be thus presumed. As between a petitioner in possession and a respondent, each claiming under deeds from different parties, it would not be necessary for the court to decide which had the better chain of title, but only to determine whether the possessor of the estate had shown such a title as, in its discretion, entitled him to have the validity of his title decided; so, when the petitioner in possession claims by disseisin, the same discretion should be exercised, not that a wrongful disseisor may be aided, but that disputes as to the title may be quieted. It is said that the respondent claims only two thirds of the premises; and that, as the claimant of the other third is out of the State, she could not be ordered to bring an action. Macomber v. Jaffray, 4 Gray, 82. The respondent therefore contends, that, as the possession of one tenant in common is the possession of all, the other tenant may have made an entry or done some act which may have defeated the petitioner’s alleged possession. Allen v. Holton, 20 Pick. 458. If this be so, it is a matter to be proved at the trial when action shall be brought. It ought not to prevent the petitioner from seeking, and, if the court shall deem proper, obtaining, an order that the respondent shall bring such action. Decree affirmed.