So considered, it follows that there was no error in the order directing the jury to find a verdict for the defendant. Exceptions overruled. (224 Mass. 342) as the finding of the land court is based upon his title gained by adverse possession. [1] In 1872 Samuel R. Payson bought Point Gammon for a summer residence, and acquired title by deeds from the several owners of record. He occupied the place for a summer home, and kept a farmer on the premises throughout the year. Whether his possession, especially after the date of his deed from Crowell, was of such a kind as 114(1)-ACTIONS-is required for gaining title by adverse pos PHIPPS et al. v. BEHR et al. (Supreme Judicial Court of Massachusetts. Barnstable. May 25, 1916.) 1. ADVERSE POSSESSION EVIDENCE-SUFFICIENCY. sion. [Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 682, 683; Dec. Dig. 114(1).] session, need not be determined. In a proceeding to register title to land, evi- In 1883 Payson conveyed the entire parcel dence held to warrant a finding that petitioner's No. 1 to Charles B. Cory. The peninsula was predecessor had acquired title by adverse posses-bounded by water on three sides. Across the narrow portion of the neck near the northeasterly part of the property, and running from the sound on one side to Lewis Bay or the other, Cory erected a substantial fence more than 6 feet in height. From 1883 to 1907 he and his successors in title excluded the public from the property, and a gatekeeper turned back those who attempted to 2. ADVERSE POSSESSION 31-RECORDS-NO TICE-CONSTRUCTIVE NOTICE. A respondent, though one of the tenants in common entitled to land, is bound to take constructive notice that the deed of one entering into possession of the land, which he treated as being his sole property, purported to convey to such possessor the entire interest in the prop-enter the premises. In addition, Cory erected erty. [Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 128-133; Dec. Dig. 31.] 3. ADVERSE POSSESSION 31 - TENANTS IN COMMON-RIGHTS OF TENANT-NOTICE. Where one took possession of land, of which respondent was one of the owners in common, under a deed purporting to convey the entire title and treated the entire tract as his own, exercising the complete proprietory rights, respondent has constructive notice that the possessor is not holding as a tenant in common, but adversely. [Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 128-133; Dec. Dig. 31.] Exceptions from Land Court, Barnstable County; C. T. Davis, Judge. Petition by John S. Phipps and others against M. Gertrude Behr and others to have title of petitioners to a parcel of land registered and confirmed. There was a judgment for petitioners, and respondents excepted. Exceptions overruled. Wm. H. White, of Boston, for petitioners. Edward M. Bennett, of Boston, for respondents. elaborate farm and other buildings on the locus, laid out golf links covering about 100 acres, fenced off a large tract for a game park, and expended more than $100,000 on the improvement of the property. He and his family lived at Point Gammon the greater part of every year, and his employés live there throughout the year. In 1911 he conveyed all but 50 acres to a corporation; and the title to all of the locus later passed to the petitioners. Since 1883, Cory and his successors in title have cultivated the arable land in rotation, and used the remainder of the locus for the purposes for which it was adapted. The respondents' exceptions are to the findings by the land court of title in the petitioners acquired by adverse possession. We cannot say that the evidence does not fully when Payson conveyed to Cory the entire warrant that finding. At least since 1883, interest in parcel No. 1, there has been exclusive possession of the entire locus maintained by the petitioners and their predecessors under a claim of title. The acts of dominion exercised by them were open, adverse and continuous; they indicated a claim on DE COURCY, J. The exceptions of the re-the part of the possessors, of exclusive title spondents relate only to the land designated to the entire premises; and the use they as "Parcel No. 1." This is a peninsula of made of the various parts of the peninsula, about 600 acres, extending southwesterly arable, marsh and woodland, was in harfrom the southerly side of the town of Yar-mony with that claim, and was of such charmouth into Nantucket Sound, and locally acter as usually accompanies exclusive ownknown as Point Gammon, or Great Island. It is conceded that the petitioners have a good record title to all of the tract with the exception of an undivided one-half interest in a portion of the partition land, so called. We need not consider the petitioner's conten-32 N. E. 861. tion that he has a good record title to this [2, 3] The record does not disclose the portion also, acquired through the deed basis for the respondent's claim of an intergiven by the sole heir of Alexander Crowell, est as tenant in common in the one-eleventh ership of like property. Keith v. Kennard, 222 Mass. 398, 110 N. E. 1030; Tufts v. Charlestown, 117 Mass. 401; Andrew v. Nantasket Beach R. R., 152 Mass. 506, 25 N. E. 966; Houghton v. Wilhelmy, 157 Mass. 521, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes where he established his right of recovery on brought the suit in his own name, to amend, and, the merits, is entitled, though he improperly upon amendment, judgment in plaintiff's favor will be upheld. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3620; Dec. Dig. 887.1 Appeal from Supreme Judicial Court, Suffolk County. part set off to Alexander Crowell. But as- ers of amendment of a court below, plaintiff, suming that she had such interest, it is clear that Cory entered, not as a tenant in common but as sole owner, under a deed purporting to convey the entire interest in the locus. She had constructive notice of this from the recording of his deed. And his notorious acts, already referred to, indicated a possession that was exclusive, and constituted notice to all the world, including the respondent, of an adverse claim of title. Joyce v. Dyer, 189 Mass. 64, 68, 75 N. E. 81, 109 Am. St. Rep. 603; Parker v. Proprietor of Locks and Canals on Merrimac River, 3 Metc. 91, 37 Am. Dec. 121; Samuels v. Borrowscale, 104 Mass. 207; Ball v. Allen, 216 Mass. 469, 103 N. E. 928; 10 L. R. A. (N. S.) 185, note. Exceptions overruled. (224 Mass. 288) NOBLE v. BROOKS. (Supreme Judicial Court of Massachusetts. Suffolk. May 19, 1916.) 1. LANDLORD AND TENANT ~116(2)—LEASES -CONSTRUCTION. Where a lease described the term as one year, from September 1, 1913, to August 31, 1914, and thereafter from year to year until one of the parties should, on or before the 1st day of July, give the other notice of his or her intention to terminate the lease, it cannot be terminated until either the lessor or the lessee give the other seasonable notice of intent to terminate. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 383, 384; Dec. Dig. 116(2).] 2. MORTGAGES 199(1) - LEASES MENT-RENTS. ASSIGN A mortgagee, upon giving notice to a tenant in possession under a lease given before the mortgage, is entitled to receive the rents due and unpaid after the execution of the mortgage; the mortgage operating as an assignment of the lease. [Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 513-516, 525; Dec. Dig. 199(1).] 3. LANDLORD AND TENANT TION OF LEASE-EFFECT. 95 - TERMINA Where leased premises were mortgaged, but the mortgagee failed to give the tenant notice to quit, and the lease provided, until either the tenant or the landlord should give notice of intention to terminate the lease, it should continue, the lease was not terminated by reason of the mortgage. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 300-304; Dec. Dig. 95.] 4. RECEIVERS 178-ACTION FOR RENT "ASSIGNMENT. A receiver of a lessor, who had mortgaged the premises, is not an assignee of the lessor, and so cannot sue in his own name for rent ac cruing. [Ed. Note. For other cases, see Receivers, Cent. Dig. §§ 346-351; Dec. Dig. 178. For other definitions, see Words and Phrases, First and Second Series, Assignee.] Action by John Noble against Arthur G. Brooks. The municipal court found for plaintiff, and the cause was reported to the appellate division; and from a judgment there for plaintiff, defendant appeals. Plaintiff given leave to amend, and, upon filing the amendment, the order dismissing the report affirmed. Moulton, Loring & Bigelow, of Boston, for appellant. Loring, Coolidge & Noble, of Boston, for appellee. BRALEY, J. [1] The lease, having described the term as "one year from the first day of September, one thousand nine hundred and thirteen, to August 31st, one thousand nine hundred and fourteen, and thereafter from year to year until one of the parties hereto shall on or before the first day of July in any year give to the other party written notice of his or her intention to terminate this lease on the last day of the following August in which case the term hereby created shall terminate in accordance wit such notice," it could not be ended before expiration by either the lessor or the lessee except in accordance with these provisions or by operation of law. [2, 3] The subsequent mortgage of the leased premises undoubtedly operated as an assignment of the lease. Burden v. Thayer, 3 Metc. 76, 37 Am. Dec. 117; Russell v. Allen, 2 Allen, 42, 43. And having entered and given notice to the tenant the mortgagee thereafter was entitled to all accruing rent. Mirick v. Hoppin, 118 Mass. 582, 587; Adams v. Bigelow, 128 Mass. 365, 366. But as the mortgagee never terminated the lease it remained in full force and effect at the time possession of the premises was surrendered to the plaintiff as receiver of the lessor. The defendant having continued in occupation and there being no evidence that the required notice has been given, the fourth request was properly refused. [4] The first request, that upon all the evidence the plaintiff as matter of law cannot recover, is also disposed of by what has been said, except as to the defendant's contention that the action cannot be maintained by the receiver in his own name. It is plain that he is not an assignee of the lease and the action should have been brought in the name of the lessor. Wilson 5. APPEAL AND ERROR 887-AMENDMENTS v. Welch, 157 Mass. 77, 80, 81, 31 N. E. 712. -PARTIES. Under St. 1913, c. 716, § 3, declaring that [5] The merits having however been fully the Supreme Judicial Court shall have all pow-determined, the plaintiff is given leave to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes amend; and upon filing the amendment the (224 Mass. 239) ALLEN v. FOURTH NAT. BANK. (Supreme Judicial Court of Massachusetts. Suffolk. May 19, 1916.) But as another deposit to the credit of his individual account also had been made on those days sufficient to pay the overdrafts, the master decided that the plaintiff failed to show that the overdrafts were repaid by funds of the estate. The burden of proof rested on the plaintiff to establish the fact that the administrator had appropriated trust funds in payment of his own personal debts, and the evidence not having been reported the master's conclusion on the facts found by him that no misappropriation had been Where it was sought to hold a bank liable on the theory that the original administrator proved cannot be revised. Ginn v. Almy, 212 with the knowledge of the bank used funds of Mass. 486, 99 N. E. 276. If these transacthe estate to discharge his indebtedness to the tions are thus disposed of, there remains the bank, plaintiff has the burden of proving the check for four thousand dollars drawn on the administrator appropriated trust funds in pay-administrator's account, but deposited by the ment of his own personal debts. 1. BANKS AND BANKING BURDEN OF PROOF. 154(6)-ACTIONS [Ed. Note.-For other cases, see Banks and administrator to his own individual credit. Banking, Cent. Dig. §§ 518-521; Dec. Dig. 154(6).] -TRUST FUND-KNOWLEDGE OF BANK. that funds deposited by one as administrator By the form of the accounts appearing on its books the defendant was properly held to be chargeable with notice that all moneys deposited in the name of the administrator belonged to the estate. Allen v. Puritan Trust Co., 211 Mass. 409, 97 N. E. 916, L. R. A. 1915C, 518. But under the finding that the defendant had no actual knowledge that the administrator was wrongfully appropriating the funds of the estate for his own benefit the suit cannot be maintained. Allen v. Puritan Trust Co., 211 Mass. 409, 97 N. E. 916, L. R. A. 1915C, 518. The result is, that the plaintiff's exceptions to the report must be overruled, and the bill dismissed with costs. Decree accordingly. (224 Mass. 307) were trust funds, did not know that the admin- TAYLOR v. BOSTON, C. C. & N. Y. CANAL istrator was wrongfully appropriating trust funds for his own benefit, the bank is not liable for the administrator's misappropriation. [Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 319, 320, 322, 327; Dec. Dig. 130(1).] Case Reserved from Supreme Judicial Court, Suffolk County. Bill by Charles E. Allen, as administrator de bonis non, of the estate of Albert H. Bird, against the Fourth National Bank. On reservation upon plaintiff's exceptions to the report of the master. Exceptions overruled, and bill dismissed. Peabody, Arnold, Batchelder & Luther, of Boston, for plaintiff. Clark, Vanderhoof & Little, of Boston (N. B. Vanderhoof, of Boston, of counsel), for defendant. BRALEY, J. [1-4] The defaulting administrator opened two accounts with the defendant bank, one in his own name and one in his name as administrator of the estate of Albert H. Bird. It is found by the master that his individual account at various times was overdrawn for varying amounts, and that the overdrafts may have been respectively repaid the next succeeding bank days by checks drawn on the administrator's account. CO. (Supreme Judicial Court of Massachusetts. Barnstable. May 20, 1916.) 1. FISH 7(3)—OYSTERS-Property of CULTIVATOR. A party lawfully granted licenses, pursuant to statute, to plant, grow, and dig oysters in and upon tidewater flats within a town, until termination of the licenses bad exclusive property in the oysters, and could maintain an action of tort for their removal or destruction by private persons. [Ed. Note.-For other cases, see Fish, Cent. Dig. § 15; Dec. Dig. 7(3).] 2. FISH -STATUTE. 7(3)-OYSTER FISHERIES-DAMAGE Under St. 1899, c. 448, § 16, authorizing construction of a canal, and providing that, in case of any injury to oyster fisheries by the deposit of excavated material or in any other way, the canal company should pay to the owner or licensee of such fisheries such damages as should be estimated, the licensee of an oyster fishery could recover damages to his fishery because of the roiling and pollution of the waters over the oyster beds by sediment consisting of sand and decayed organic matter from the canal excava tions; the damages not being too remote and indirect, and the injury to particular oysters, as distinguished from impairment in the future of the value of the licenses, being within the purview of the statute. [Ed. Note.-For other cases, see Fish, Cent. Dig. § 15; Dec. Dig. 7(3).] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Exceptions from Superior Court, Barnsta- | were issued, expressly provides that no lible County; Chas.. F. Jenney, Judge. Petition by Charles H. Taylor, Jr., against the Boston, Cape Cod & New York Canal Company. There was a verdict for plaintiff, and defendant brings exceptions. Exceptions overruled. Chas. C. Paine, of Hyannis, and Jos. W. Lund, of Boston, for petitioner. R. G. Dodge, of Boston, Henry A. Ellis, of Hyannis, and H. S. Davis, of Boston, for respondent. cense shall be granted covering any portion of tide water flats where a natural oyster bed exists, and it is to be assumed that the selectmen complied with the requirements of the statute. The fishery moreover is created by statute, and when St. 1899, c. 448, was enacted the Legislature must be presumed to have intended by the words "oyster fisheries” and licensee" the statutory fishery the petitioner has been licensed to maintain. Devney v. Boston, 223 Mass. 270, 111 N. E. 788 and casBRALEY, J. [1, 2] The petitioner prior to es cited. While it is true that the destructhe enactment of St. 1899, c. 448, incorporat- tion of the shell fish was not caused by the ing the respondent company, had been lawful-"deposit of excavated materials" dumped uply granted several licenses "to plant, grow on the flats, the context, "or in other ways," and dig oysters at all times in the year in leaves no doubt that even if the portions ocand upon the flats in the tide waters of Buz-cupied by the petitioner have not been taken, zard's Bay," within the limits of the town compensation is provided if the injury provof Bourne. Pub. Sts. c. 91, §§ 97, 98; St. ed is found attributable to the authorized 1884, c. 284; St. 1885, c. 220; St. 1886, c. 299. construction and completion of the canal as See R. L. c. 91, §§ 104, 105, 106, 107. And a navigable waterway. Bent v. Emery, 173 through successful propagation and cultiva- Mass. 495, 53 N. E. 910; Wellington v. Camtion he had become the owner of a large bridge, 220 Mass. 312, 316, 317, 107 N. E. 976, quantity of merchantable oysters embedded and cases cited; St. 1899, c. 448, § 3. The within the area covered by the grants. Until petitioner not having sought or been awarded the licenses had been terminated the oysters damages for any diminution in the future of remained his exclusive property, and he could the value of the granted flats for cultivation have maintained an action of tort for their as an oyster fishery, and the measure of reremoval or destruction by private persons. covery having been strictly limited to the Keene v. Gifford, 158 Mass. 120, 123, 32 N. E. oysters in the soil and the oyster seed at946; Griffiths v. Savary, 181 Mass. 227, 63 tached thereto, as stated by the presiding N. E. 426. St. 1899, c. 448, § 16, recognizes judge in his instructions to the jury, we find and protects this class of property from in- no error of law in his refusal of the defendjury or confiscation during the work of con- ant's requests or in the instructions given in so far as the questions raised by the excepstruction by providing, that: tions have been argued. Exceptions overruled. "In case of any injury to any fishery, including oyster fisheries, caused by said canal company by the deposit of excavated material, or in any other way, the canal company shall pay to the owner or licensee of said fishery, or to the towns of Sandwich or Bourne in case the fisheries destroyed or damaged are public fisheries, such damages as shall upon the application of either party be estimated by the commissioners on inland fisheries and game, in a manner similar, so far as may be, to that provided in laying out highways, and with a right of appeal to a jury by proceedings similar to those provided for in section five of this act." The evidence was conflicting. But the jury could find upon the evidence introduced by the petitioner, that in excavating for the canal which included the "approach channels," a sediment consisting of sand and decayed organic matter from the excavations so roiled and polluted the water flowing over the flats, that the oysters being thereby deprived of a full supply of food sickened and perished. St. 1899, c. 448, § 3. It is the defendant's contention that the damages suffered are too remote and indirect to be recoverable, and the injury to particular oysters as distinguished from impairment in the future of the value of the licenses, are not within the purview of the statute. If this construction is adopted the words "oyster fisheries" and "licensee" become meaningless, for Pub. Sts. c. 91, §§ 97 and 98, in force when the licenses (224 Mass. 267) WELCH et al. v. PHILLIPS et al. HAM (Supreme Judicial Court of Massachusetts. LANDLORD AND TENANT 148(2) — LEASES - tatives and assigns, to pay all taxes and water [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. § 521; Dec. Dig. 148(2).] Report from Superior Court, Suffolk Coanty; Joseph F. Quinn, Judge. Actions by Francis C. Welch and others, trustees, against Martha B. Phillips and others, trustees, and by Samuel Hammond and others, trustees, against Joseph B. Spiller For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes and against John McCandlish. There was a verdict for plaintiffs, and the causes were reported. Judgment rendered on verdict. Tyler, Corneau & Eames and Roger F. Hooper, all of Boston, for plaintiffs. G. W. Anderson, of Boston, for defendants. DE COURCY, J. The predecessors in title of the respective partics to these actions, executed a lease of a building in Boston for a term of 20 years from May 1, 1893. The covenant therein relied upon is as follows: "And the said parties of the second part for themselves and their representatives hereby jointly and severally covenant with the said parties of the first part, their representatives and assigns, that they will during said term pay unto the said lessors, their heirs and assigns, * * * all the taxes and water taxes and assessments whatsoever, except betterments, whether in the nature of taxes now in being or not which may be assessed upon or payable for or in respect of the said premises or any part thereof during the said term." * * * The taxes sued for were lawfully assessed upon the demised premises by the city of Boston as of April 1, 1913. They were paid to the collector by the plaintiffs, after the defendants had refused to make payment of the amount. Assuming, as the defendants contend, that the lease began on May 1, 1893, and terminated April 30, 1913, and that they would not be liable for a tax assessed May 1, 1913, nevertheless, by the express terms of the covenant they are liable for the tax assessed upon and payable in respect of the premises April 1st. That assessment created a lien upon the premises substantially a month before the expiration of their term, which could be discharged only by payment of the tax, even though its actual payment was not due until after the termination of the lease. Wilkinson v. Libbey, 1 Allen, 375; Richardson v. Gordon, 188 Mass. 279, 74 N. E. 344. There is no ambiguity about this covenant, to open the door for parol evidence. There are shown no circumstances or conditions existing at the time of the execution of the lease to indicate that the parties intended anything different from what their language clearly expressed. The real basis of the defendants' complaint is St. 1909, c. 440, which took effect many years after the execution of the lease, and which advanced the date for assessing taxes from May 1st to April 1st. It is contended that they paid the taxes for 1893, the first year of the lease, and that this liability for the 1913 tax will result in their paying the taxes assessed upon the property for 21 years, although the term of the lease was only 20 years. Nevertheless the court is unable to relieve them from this seemingly inequitable result. It follows necessarily from the terms of the written lease which was executed by their predecessors in title. They agreed thereby whether in to pay "all the taxes, the nature of taxes now in being or not" upon the premises. Presumably the change in the tax law which makes them liable for the 1913 tax was not contemplated by them. But the payment of that tax comes precisely within the terms of the contract they made, and we can only construe and enforce it. It is not for us to speculate as to what agreement they would have made if they had foreseen the likelihood of a change in the tax law, and to modify the lease in accordance therewith. Codman v. Johnson, 104 Mass. 491; Central Wharf & Wet Dock Corp. v. India Wharf, 123 Mass. 567; Bangs v. Potter, 135 Mass. 245; J. L. Hammett Co. v. Alfred Peats Co., 217 Mass. 520, 105 N. E. 370, L. R. A. 1915A, 334. The evidence offered by the defendants was immaterial in this action. For the reasons stated there was no error in the refusal to charge the jury as requested, or in directing the verdicts; and in each action judgment must be entered on the verdict for the plaintiffs. So ordered (224 Mass. 269) HUTCHINGS v. VACCA et al. (two cases). (Supreme Judicial Court of Massachusetts. Worcester. May 19, 1916.) 1. NEGLIGENCE 26 PERSONS LIABLECOLLISION. An occupant of an automobile, as a guest of the owner, on the occurrence of an accident, due to the negligence of the driver, over whom the occupant exercised no direction or control, was not liable to one injured thereby. [Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 39, 40; Dec. Dig. 26.] 2. NEGLIGENCE 136(13)-PERSONS LIABLE -COLLISION-QUESTION FOR JURY. In an action for injuries from a collision of the owner, the defendant, a guest, and his wife, plaintiff's carriage with an automobile, in which were riding, and which was driven by the de fendant's son, who had no license as a driver, fendant's direction, held, on the evidence, that and was learning to drive partly under the de defendant's liability was for the jury. [Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 279, 289, 303; Dec. Dig. 136 (13).] Exceptions from Superior Court, Worcester County; Wm. P. Hall, Judge. Actions by George T. Hutchings and by Roy Hutchings against John S. Vacca and others. Verdict for plaintiffs, and defendant John S. Vacca excepts. Exceptions overruled. Frederick B. Spellman, of Worcester, for plaintiffs. Thomas L. Walsh, of Fitchburg, and Simon Friedman and Timothy F. Larkin, both of Worcester, for defendants. BRALEY, J. The plaintiffs, while traveling by carriage on a public way, were injured by a collision with an automobile in which the defendant Ralph Vacca the owner, the defendant Michael Vacca the driver, and the defendant John S. Vacca the brother of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |