Duff v. Leary

Knowlton, J. The dwelling-house which constitutes the demanded premises became the property of John Duff by a deed dated April 30, 1859. He died on October 26, 1880, and the demandants are two of his children, who hold, under his will and by a deed from their brother John R. Duff, the title which he had at the time of his death. They are entitled to recover, unless the tenant has acquired a title by adverse possession. The tenant testified, and introduced to corroborate her the testimony of her brother and sister, that John Duff, who was her mother’s brother, made to her a verbal gift of the demanded premises in the spring of 1860, and that she, and her father and mother and brother and sister, immediately moved into the house, and that she has been in occupation as owner ever since. If the [540] gift was made as she testifies, it was ineffectual to change the ownership of the property. She therefore rests her claim of title upon an alleged disseisin and adverse possession. The principal question before us is whether there was evidence to warrant the jury in finding in her favor upon this claim. The evidence in relation to the gift is immaterial, except as it bears upon the character of her occupation. Both parties must be presumed to have known that the legal title remained in John Duff, and her subsequent acts must be scrutinized, to see whether they constituted actual, open, exclusive, and adverse possession of the real estate for twenty years or more. Sumner v. Stevens, 6 Met. 337. Motte v. Alger, 15 Gray, 322. In the language of the bill of exceptions, “ It appeared, or was admitted, that the taxes on the premises were regularly assessed to John Duff from 1859 to his death, and paid by him, and since his death to his heirs, and paid by them; that John Duff kept the house insured against fire in his own name; that he paid the water rates for the house, and made or paid for all the repairs on it; that Mrs. Manning, every year from 1870 to her death, while she occupied two or three rooms, as above stated, collected rents of one or two tenants, ordered or contracted for most of the repairs on the house, directed how the same should be made, and paid for the same, the bills for such repairs being made to her and in her name, though John Duff furnished the money, or gave her the amounts she paid for such repairs, and that the bills were given to him, and that she did not pay rent for her rooms.” The failure on the part of the tenant ever to claim recognition, either as owner or possessor, in regard to the taxation of the property, or the insurance of the house, or the charging of water rates, was hardly consistent with an exclusive possession adverse to the true owner. In making or paying for all the repairs, he, and not she, performed acts of control and management appropriate to possession as well as to ownership. From 1870 to her death in 1882, Mrs. Manning, a sister of John Duff, was in possession of a part of this house. It is evident that her occupation was not under the tenant, for she not only paid no rent, and collected rents all the time of one or two other tenants, but she acted apparently as agent and manager for the owner, in. [541] ordering most of the repairs on the house, directing how they should be made, paying for them, and giving the bills to John Duff, and receiving from him the amounts which she paid. Her letter, introduced as an accompanying declaration characterizing her occupation, is confirmatory evidence that her possession was under her brother, and not under the tenant. And the same fact appears in the testimony of the tenant, that, when Mrs. Manning was spoken to in 1870 or 1871 about coming back there to live, she was in doubt whether her brother would like it or not, and finally came only after the tenant had obtained his consent, and she was told that he did not object to it. The acts on which the tenant relies to establish her title are her occupation, and doing “ papering or whitewashing, or something like that,” and her telling her friends that she was the owner, and her collection of certain rents. She was examined fully and particularly as to her acts of possession, and her general statement that she acted as owner must be taken to mean merely that she acted in the ways specified. Richmond Iron Works v. Wadhams, 142 Mass. 569, 570. But it is conceded that her occupation was with her father’s family, that her brother lived there all the time except about four years, her sister until after November, 1883, her mother until she died in 1878, and her father until he died in 1879, and that none of them ever paid any rent. It is conceded also, that John Duff paid rent for the house where they all lived immediately before moving into this; and that his sisters Mary Duff and Mrs. Manning had occupied this house without chai’ge for rent from the time he bought it until just before the alleged gift to the tenant, and that, soon after, Mary Duff came back into the house and lived there without paying rent until she died, in 1868; and that Mrs. Manning was there from 1870 or 1871 until she died, in 1882. As bearing upon the character of her occupation, it also appeared from the tenant’s testimony that her uncle always furnished her money for the house, and paid the grocery and other bills, giving her liberally quite large sums. As to the occupation of the only tenant with whom there was evidence that she ever made an arrangement, it appeared that she consulted her uncle, and that he consented to the letting. In another part of her testimony, she said, “ I never did anything without consult [542] ing him during those twenty years.” A- mortgage, put upon the property before he bought it, was paid by John Duff, and was discharged of record, in May, 1864. Upon the undisputed facts and the tenant’s own testimony, it is difficult to see where there was any evidence that she maintained for twenty years a possession, either exclusive, or adverse to the true owner. We think the jury were not warranted in finding that she acquired a title, and the first instruction requested should have been given. The evidence of declarations of John Duff, made at sundry times, as to his ownership of the house, and how his relatives occupied it, and of his entry of it in the inventory of property belonging to him on April 1, 1866, was rightly excluded. As declarations in his own favor, they were not competent upon the question whether there was a gift, and they had no relation to the alleged acts of possession upon which the tenant rested her case. • Exceptions sustained.