Stark v. Mansfield

Holmes, C. J. This is a petition to the Probate Court under Pub. Sts. c. 49, § 19, for the appointment of a trustee to receive the sum paid by the Boston Terminal Company for the taking of certain land under St. 1896, c. 516, and to hold the said sum [81] for the benefit of the parties according to Pub. Sts. c. 49, § 18. The Probate Court dismissed the petition, and the petitioners appealed. The case was reported by a single justice to the full court. It is not denied that these sections of the Public Statutes are adopted by reference. Sts. 1896, c. 516, § 23. Pub. Sts. c. 112, §§ 95, 100, 107. But it is denied that the petitioners have a standing under them because it is denied that they have any property in the land taken. It is contended further that if the petitioners are entitled to any interest in the said sum there should be an apportionment under Pub. Sts. c. 49, § 22, instead of a trust under § 18. The petitioners demised the premises for one hundred years to one Wheeler, without words of inheritance, reserving a certain rent. There was given also a perpetual right of renewal at the choice of the tenants, with provision for fixing the rent which never was to be less than that originally reserved. Wheeler conveyed to the respondent Mary A. Mansfield, who made a mortgage" and sublease. The respondents contend that Wheeler took a base fee, leaving in the petitioners a mere possibility of reverter, or right of re-entry, citing Jamaica Pond Aqueduct, v. Chandler, 9 Allen, 159, 167, Robb v. Beaver, 8 W. & S. 107, and Stephenson v. Haines, 16 Ohio St. 478. But in those cases the so called leases contained words of inheritance in the habendum, and it does not need argument' or authority to show that an instrument like the present cannot convey a fee at common law. The only argument needing consideration is based on Pub. Sts. c. 121, § 1, and that may be disposed of in a few words. The earlier part-of the section provides, that when land is demised for a term of one hundred years or more, the term, so long as fifty years of it remain unexpired, shall be regarded as an estate in fee simple as to everything concerning its descent and various other incidents not affecting this case. The section then ends with the words, “ and whoever holds as lessee or assignee under such a lease shall, so long as fifty years of the term are unexpired, be regarded as a freeholder for all purposes.” But this does not give the lessee a fee, it simply gives to his interest a dignity and quality equal to a life estate. It is not intended to destroy or impair the reversion.of the lessor or to make it in [82] any degree less an estate than it was before. The respondents’ principal contention seems to us entirely unfounded. The deed of Wheeler to Mansfield did contain words of inheritance, and it might possibly be argued, although it was not, that this was a disseisin of the petitioners, and that if the petitioners were disseised they had no standing to make a claim against this fund. We mention the suggestion simply to show that it was not overlooked. Taking the deed as a whole, and seeing that it conveyed the premises subject to the rent reserved, and covenanted that the grantor was “ seised in leasehold,” we are of opinion that it should be construed as a conveyance of the interest created by the demise rather than as "one wrongful and paramount to it, the language suggestive of a fee being used pretty evidently merely to express the effects of the statute just cited, as to long terms. See Hollenbeck v. McDonald, 112 Mass. 247, 249, 250. When the petitioners are shown to stand as at common law, owners of a reversion subject to a term, they present the case expressly contemplated by Pub. Sts. c. 49, §§ 18, 19, and their right is made out. The provisions for apportionment in §§ 20, 22, are confined to estates other than and different from those for which provision is made in § 18. Boston v. Robbins, 121 Mass. 453. The existence of a sublease of a part of the term made by the tenant, Boston v. Robbins, 126 Mass. 384, or of a mortgage of her interest is not enough to throw the petitioners upon § 22. See also Farnsworth v. Boston, 126 Mass. 1; Willard v. Boston, 149 Mass. 176. Pub. Sts. c. 112, § 108, refers, primarily at least, to a case where the landowner, not a tenant, has made a mortgage. Decree of Frob.ate Court reversed.