Robert Cooper Grier

“ It is the settled law of Massachusetts, that a married woman, by joining with her husband in a deed, may pass the lands of which the husband and wife are jointly seized, in her right. Fowler v. Shearer, 7 Mass., 14.
It is also the settled law of Massachusetts that the right of a married woman and her heirs to make an entry upon lands of which she has been disseized jointly with her husband, is absolutely barred after thirty years' adverse possession. Stat. of Mass., 1786, ch. 13, § 4; Melvin v. Propr. of Locks and Canals, 16 Pick. (Mass.) , 161; Same v. Same, 5 Metc. (Mass.) , 15; Kittredge v. ”

“ It cannot be denied, that an adverse possession may be kept up without a personal residence where the disseizor gives leases to tenants, puts them in possession, and receives the rents, claiming the land as his own. ”

“ As regards the second instruction. The presiding judge erred, because the verdict of a former jury introduced by the tenants was evidence to control this case and the issue.
We contend that the verdict of a former jury put in by the tenants, rendered against them in favor of a party under whom the present demandant claims, is evidence for the demandant in the present case; as it appears from the record, also put in by them, affirmatively, that such verdict was in all respects conformable to law. Such verdict is competent evidence. See Filler v. Milliner, 2 Johns. (N. Y.) , 181; 4 Com. Dig., 89 ”

“ Kittredge was ever on the land after the death of her husband; that she was entitled to a life estate in one third part of the farm, and was, therefore, legally entitled to one third part of the rents; that she cannot be considered as an abator, because an abatement is an entry by a stranger, nor as a disseizor, because she did no act which can be construed as a disseizin of the heirs; that there was no evidence of any disclaimer of the heirs, nor any evidence of an adverse possession on the part of Mrs. ”

“ That it inures to the present demandant. Carver v. Jackson, 4 Pet., 83; Somes v. Skinner, 3 Pick. (Mass.) , 52.
As regards the third instruction. The demandant contends it was wrong, because, if the jury believed the testimony of James Melvin, then the monuments established by his father and Dr. Kittredge, with the Williams land, there being no evidence of any others answering the calls in the subsequent leases, writ, and judgment, were to be regarded by them as the southern line of the land embraced in the lease, writ, and judgment ”

“ So if the mother, by mistake of her rights, and without objection, receives the rents jointly due to herself and children; this constitutes no ouster of them, she being liable to account to them.
The judgment of the Circuit Court is therefore affirmed, with costs. ”

“ If the widow entered, she would be a new disseizor, as she had no right to enter as the successor of her husband. Gibson v. Crehore, 5 Pick. (Mass.) , 146, 149; Parker v. Obear, 7 Metc. (Mass.) , 24. That neither married women, nor minors, nor a non compos mentis, can become disseizors by adopting and consenting to the acts of others. 6 Com. Dig., 271, Seizin, F., 4; 1 Roll., 160, 161.
That the deeds, through which the tenants claim to derive title from the Kittredge heirs, did not include the demanded premises. ”

“ For, assuming that a verdict and judgment in a writ of entry sur disseizin to be conclusive between parties and privies in Massachusetts, and that they operate by way of estoppel, yet the record in this case would have no such effect;-1st. Because it was neither pleaded nor given in evidence by the demandant for that purpose. 2d. All estoppels are mutual; the demandant was not party to the suit, nor privy except as to one fourteenth of the premises, and would not therefore have been estopped as to the remainder; so, neither could the tenants. 3d. ”

“ A married woman may be disseized at the same time with her husband. Podger's case, 9 Co., 104; Runnington on Eject., 60; Adams on Eject., 48, 49, note; Jackson on Real Actions, 25; Polyblank v. Hawkins, 1 Doug., 329 ”