#### Mary Cummings *versus*Eunice Wyman.

Of the evidence of an ouster, sufficient to bar a writ of entry.

[Where a tenant in common enters into the actual and exclusive possession of the lands, taking the rents and profits to his own use, and openly asserting his own exclusive property in the lands, denying the title of any other person, it is an adverse possession, and ouster of the other tenants. — Ed.]

This was a writ of *entry sur disseisin,*wherein the said *Mary*demands against the said *Eunice*possession of one undivided sixth part of a piece of land in *Woburn,*in this county; and she counts upon her own seisin within thirty years, and upon a disseisin by the tenant.

* October term, 1809, the parties entered into a rule [ *465 ] of court, by which they agreed to submit the action to the determination of *Asahel Stearns,*Esq., (counsellor of this Court;) and that he should have authority to ascertain the increased value of the demanded premises, by virtue of the buildings and improvements made thereon by the tenant and those under whom she claims, and also the value of the premises without the improvements ; and that the report of the said referee should have the same effect in law as a verdict of a jury would have had upon a trial of the action.

The referee, at the request of the parties, reported the following facts, as proved or admitted before him: —

*“ Nathan Brooks,*being seised of the demanded premises in fee simple, on the 9th of January, 1758, by his will, duly executed and since proved, among other things, devised the improvément of the said premises to *Elizabeth,*his wife, during the time of her being his widow, and then further devised as follows: —

“ 1 My will is, and I do hereby bequeath to my only son, *Nathan.*five parts in eight of all my estate, except what is heretofore given away, and after my just debts, &c., are paid by my executors, item, my will is, and I do hereby give to my only daughter, *Elizabeth,*the remaining part, of my estate, &c. My will is, that, if my said son should die before the age of twenty-one years, or without heirs, or heirs lawfully begotten of his body, that his sister shall have all his part of said estate. And if my said daughter should die before she arrives to the age of twenty-one years, or without heirs, or heirs lawfully begotten of her body, then the whole of her portion to revert and turn back to her brother. And if they both should die before they or either of them come to the age above mentioned, or without heirs lawfully begotten of their bodies, then to be divided *458between my said wife, and each of my *own*brothers and sisters, my said wife to have a double share.’

* “ The testator died on the 25th of January, 1758, leaving his said wife, son and daughter, and seven brothers and two sisters of the whole blood, and one sister of the half blood. *Elizabeth,*the daughter, died February 12, 1758, under age, and without issue. *Samuel,*one of the testator’s brothers, died intestate, and without issue, in the lifetime of *Nathan,*the son. *Isaac,*another brother of the testator, died in the lifetime of *Nathan,*the son, and left issue one son and two daughters, of whom the demandant is one. And the said *Nathan,*the son, died on the 24th of April, 1774, under age, and without issue.

“ After the death of the testator, his widow lived in the house, and continued in possession of the demanded premises until the 26th of April, 1764, when she intermarried with *Zebediah Wyman,*who immediately took possession of the demanded premises, and lived with his said wife in the house until August, 1774, when she died, leaving issue by the said *Zebediah.*

“In the course of the years 1774 and 1775, the said *Zebediah*purchased in the shares of all the brothers and sisters of the whole blood, who survived the testator’s son, *Nathan,*except one ; and in 1782, he purchased in the remaining one, and also took a release of the testator’s sister of the half blood.

“ Between the years 1775 and 1778, the said *Zebediah*made great improvements and alterations upon the premises, thereby making the same of more than twice the value they would have been without those alterations and improvements.

“ The demandant, a daughter of *Isaac,*came of age in 1786, and had generally lived within a mile of the premises, until she married, in 1784, when she removed, with her husband, into *New Hampshire,*where he died in 1788. Soon after the death of her husband, the demandant returned from *New Hampshire,*and has resided ever since within half a mile of the premises, having married a second husband in 1790, with whom she lived about five years, when he died.

* “During the minority of the demandant and her brother and sister, their guardian, or some friend on their behalf, made claim to a part of the demanded premises against the said *Zebediah,*who denied their right. Afterwards the parties, by agreement, consulted counsel, and were advised that the said minors took nothing by the said testator’s will. This opinion was acquiesced in until 1785 or 1786, when the demandant’s brother having come of age, he made claim, in behalf of himself and his sisters, to the said premises; and the said *Zebediah*denied their right, saying tha*459ne had bought in the shares of all the family who could get any thing under the will. He also made the same declaration several times to other persons.

“ In April, 1793, the said *Zebediah Wyman*died intestate, leaving the tenant his widow, he having been in the exclusive possession of the demanded premises from the time of his intermarriage with the testator’s widow. In September, 1793, commissioners, appointed by the judge of probate, duly assigned the demanded premises to the tenant, as a part of her dower, out of the estate of her said husband.

*“*Ten days before the commencement of this action, *viz.,*March, 1809, the demandant requested her agent to make an entry upon the premises; and he immediately entered into the house, and spoke with the tenant; but it did not appear that he told her he had come to make an entry in behalf of the demandant.

“ The whole of the premises of which the demandant claims a part have been increased in value fourteen hundred dollars, by reason of buildings and improvements made thereon by the tenant, and those under whom she claims. And the value of the same premises, without these improvements, would have been eight hun dred dollars.

“ Upon these facts, the referee is of opinion that the said *Mary Cummings*is not entitled to recover in this action. He therefore determines and awards that the said *Eunice Wyman*recover against the said *Mary Cummings*her costs of court, together with costs of reference, taxed at,” &c.

Ward, for the demandant,

objected to the acceptance of * the report, and he argued that *Isaac Brooks,*father [ * 468 J of the demandant, took, under the will, by way of executory devise, an interest which descended to the demandant; or if he took a vested remainder, depending on estates in tail devised to the son and daughter of the testator, the effect is the same: (1) That there was no disseisin until 1793, when the tenant took her dower; that the possession of *Z. Wyman*was as tenant in common with the demandant; (2) and that the demandant’s entry was sufficient and seasonable. (3)

*Prescott*and *Bartlett*for the tenant.

The cause stood continued *nisi*for advisement, and at the following March term in *Suffolk*judgment was pronounced.

(1)

*Fearne,*286,444,448.-2 *Wilson,*29, 89. *—3 D. & E.*96.-3 *East,*27a - 2 *Burr.*1131.

(2)

 1 *Burr.*111. —2 *Salk.*423.-5 *Burr.*2604.

(3)

*Co Lit.*245.-3 *Wils.*527. — 2 *Strange,*1128

Curia.

The award made by the referee in favor of the tenant *460will of course be accepted, unless the facts on which his opinion is - founded, and which he has stated at the request of the parties, show it to be erroneous and unjust.

Without considering the title set up by the demandant, it is evident that whatever right she might have had is barred by the statute of limitations. She made no actual entry on the demanded premises within thirty years after her supposed title accrued ; which is the utmost period allowed, even to a minor.

The questions, whether the entry of a tenant in common is such as to accrue to the benefit of the others, and whether one has actually ousted another, are questions of fact, involving'sometimes the intentions and motives of the party in possession, which it is the province of a jury to determine. These have been submitted by the parties in this case to the referee, and we must understand him to have decided them against the demandant.

We are satisfied that this decision is perfectly correct. If these same facts had been found before a jury, they would have been instructed by the Court that they might presume an ouster and an adverse possession by *Z. Wyman*and those claiming under him. It would not be too much to say that a verdict for the demandant might have been set aside as against evidence.

*From the year 1774, *Z. Wyman*and his assigns have had the actual and exclusive possession of the premises. He procured deeds of conveyance from all the brothers and sisters, who, according to his opinion, had any title under the will. He made, at his own expense, important and valuable improvements, and took all the rents and profits to his own use. The claims made by the demandant and her brother tend further to prove the ouster by *Wyman,*and his adverse possession, inasmuch as they gave him occasion to deny their title, and openly to assert his own exclusive property in the premises. His pretensions were supported by the opinion of counsel consulted by both parties at the time; and whether that opinion were correct or not, the fact shows the nature of his possession, and the title under which he . claimed to hold it.

All this is abundant evidence of an actual ouster, and of an adverse possession, which continued upwards of thirty years. The cases of *Fisher*vs. *Prosser,*(4) and *Gordon*vs. *Pearson,*(5) which were cited by the counsel for the tenant, fully support the award of the referee, (a)

*Report accepted,*

*461ADDITIONAL NOTE.

[A tenant in common of certain land conveyed the whole; the grantee enteren, and afterwards a creditor of the latter levied and entered upon the whole, claiming tobe sole owner. Held, the co-tenant of the grantor was disseised. — *Bigelow*vs. Jones, 10 *Pick.*161. — See *Parker*vs. *Proprs.*&c. 3 *Metc. 91.—Kittredge*vs. *Locks,*&c. 17 *Pick,*246.— *Chiles*vs. Conley, 9 Dana, 388. — *Phillips*vs. *Gregs,*10 *Watts,*158. *—Hart*vs. *Gregg,*10 *Watts,*185. — *Watson vs. Gregg,*10 *Watts,*289. *—Bolton*vs. *Hamilton, 2 Watts*& *Serg.*294.

But where one in possession under a tenant in dower held over after her death, purchased the shares of some of the reversioners, and continued in the exclusive possession, but without manifesting any intention to oust the other reversioners j held, his possession was according to the title, and the reversioners were tenants in common with him, and entitled to partition. — *Liscomb*vs. *Root,*8 *Pick.*376. — See *Catlin*vs. *Kidder,*7 *Verm.*12.

A part of several tenants in common conveyed their shares to A, who afterwards executed a deed of the whole estate to B. 6 entered and claimed the whole, disseised the co-tenants, and then conveyed the whole estate to C, who also entered, claiming the whole. The co-tenants then conveyed their shares to D, who brings a writ of entry against C. Held, C was not estopped by the deeds to A, to set up a title by disseisin. — 3 *Metc.*91.

One tenant in common, who enters upon the land and cuts timber, in the absence of any evidence of an ouster of the others, is presumed to enter under his legal title. — *Whiting*vs. *Dewey,*15 *Pick.*428.

Where one takes possession, claiming title to the whole property under a deed, which title is defective as to a moiety, this is a disseisin of the owners of such moiety. - *Prescott*vs. *Nevers,*4 *Mass.*326.

Petition for partition. Part of a lot of land, belonging to the estate of an intestate, was assigned by metes and bounds to his widow for dower, by commissioners duly appointed. They made no return, but she accepted and entered upon the land The administrator sold the reversion of the dower land, and the grantee conveyed it to the respondent, an heir who had continued to be seised, as tenant in common with the other heirs, in the rest of the lot, and to whom the widow conveyed her right in the dower land. The respondent fenced the dower land in presence of F, another heir, declaring that he claimed an exclusive right to it. F never attempted to disturb his possession, but the petitioner, the son of F, made several attempts to enter and occupy the land, which were repelled; and the respondent maintained his posses sion, and was in actual possession when F conveyed all his right to the petitioner. Held, whether the assignment of dower was valid or not, F was disseised, and nothing passed by his deed to the petitioner. — *Flagg*vs. *Thurston,*13 *Pick.*145.

A suit for partition will not lie, where the defendant has for any time, however short, held adversely to the plaintiff. — *Law*vs. Patterson, 1 *Watts*& *Serg.*184.-Whether a tenant in common entered with this view, is a question for the jury. - *Blackmore*vs. *Gregg, 2 Watts Serg.*182.

As to what constitutes a disseisin, see *Blood*vs. *Wood,*1 *Metc.*528. — *Comings*vs. *Little,*24 *Pick.*266. — *Lessee,*&c., vs. *Courtney,*5 *Pet.*320. — *Bradstrset*vs. *Huntington,*5 *Pet.*402.— *Dennett vs. Crocker,*8 *Greenl.*239. — *Boothby*vs. *Hathaway,*2 *Apple.*251.— *Varick vs. Jackson, 2 Wend.*166. — *Allyn*vs. *Mather,*9 *Conn.*114. F H.]

(4)

*Cowp.*217.

(5)

1 *Mass. Rep.*323.

(a)

*[Chapman*vs. *Gray,*15 *Mass. Rep.*439. — *Leonard*vs. *Leonard,*ante, 281. — *Higley*vs. *Rice,*5 *Mass. Rep.*344. — *Brown*vs. *Wood,*17 *Mass. Rep.*68. — *Shumway**461vs. *Holbrook,*1 *Pick.*114. — *Barnard vs. Pope,*14 Mass. Rep. *434.—Ricard*vs. Williams, 7 *Wheat.*105.—Ed.]