and conveyance by Hackley. Litchfield v. Cudworth, 15 Pick. 31; Harrington v. Brown, 5 Pick. 519; Perry, Trusts, § 782.

FIELD, J. It seems to have been conceded at the trial that the plaintiff had a sufficient title to a possession of the lot to enable him to maintain his action, unless the defendant had acquired title by adverse possession. It is found that the plaintiff by deed acquired a good title to 8 acres and 28 rods, and, if he did not by the same deed acquire title to the remaining 5 acres and 70 rods, he, in 1852, took possession of all of the land under the deed purporting to convey the whole land, and exercised acts of ownership by cutting off all the wood and timber. The defendant contends that there was evidence for the jury that he had acquired title by adverse possession after the plaintiff took possession under his deed. The land was woodland when cut over by the plaintiff, and had been left by him to grow up to wood, and, at the commencement of the action, "consisted of sprouts, about one acre of pasture, and some wet land; and all of it had been occupied by the defendant's cattle, more or less, ever since 1852." It was entirely surrounded by the defendant's land, and the defendant had fenced his own land, and had thus included within the fence the land of the plaintiff; but we do not understand that any fence had been built on any of the boundary lines between the plaintiff's and defendant's land. The defendant had "used the lot as a pasture and place for his cattle to run, feed, and drink upon, without any hinderance or objection made by any one, for more than 20 years." By this we understand that the defendant's cattle, put upon his own land, went upon the plaintiff's land, and used it, as well as the defendant's adjoining land, as a pasture. The defendant had also repaired a road through this lot of the plaintiff, and had used the road in going to and from the defendant's land; and had, "from time to time, from 1856 to 1877," cut one or two cords of wood upon the plaintiff's land, and had allowed it to remain on the land "for some time before taking the same away, so that it could be seen by any one." The defendant testified that he claimed this lot as his own since 1856 or 1857, and that he "ever since had had full and exclusive possession and control of the same, unmolested by any one;" but this must mean that his possession had been such as has been described.

As the land upon which the defendant entered and cut the wood, and which he used in connection with his own land as a pasture, was wild, uninclosed land, we think the evidence did not tend to show a title in the defendant by adverse possession, as against the plaintiff's prior title, whether he acquired it by deed, or by the possession which he took under the deed, before the defendant entered upon the land. Parker v. Parker, 1 Allen, 245; Slater v. Jepherson, 6 Cush. 129; Morris v. Callanan, 105 Mass. 129; Cook v. Babcock, 11 Cush. 206; Williston v. Morse, 10 Metc. 17; Coburn v. Hollis, 3 Metc. 125.

Judgment on the verdict.

NOTE.

What is such possession of land as will set the statute of limitations in operation and ripen into a title by adverse possession, see Holbrook v. Gouveneur, (Ill.) 3 N. E. Rep. 220; Crapo v. Cameron, (Iowa,) 16 N. W. Rep. 523. What is not, Miller v. Zufall, (Pa.) 6 Atl. Rep. 350; Donovan v. Bissell, (Mich.) 19 N.W. Rep. 146; Brown v. Rose, (Iowa,) 7 N. W. Rep. 133; Skinner v. Crawford, (Iowa,) 6 N. W. Rep. 144; Watkins v. Lynch, (Cal.) 11 Pac. Rep. 808.

(143 Mass. 103)

GIBBS and another v. CHILDS.

(Supreme Judicial Court of Massachusetts, Nantucket. November 24, 1886.) REPLEVIN EVIDENCE OF TITLE TO SUSTAIN ACTION-MORTGAGE OF PERSONAL PROPERTY. The execution and delivery of a mortgage of personal property are not evidence of title to the property included in the mortgage, against a stranger; and if there is

no possession of the property by either the mortgagor or mortgagee, it is, with respect to one who has attached it, res inter alios; and the mortgagee, upon simply showing the execution and delivery of a mortgage of the property to him, cannot maintain an action of replevin against one who has attached it.

This was an action of replevin. At the trial in the superior court, before BACON, J., the following was all the evidence: The plaintiffs proved and read in evidence a mortgage of the replevied boat from William H. Chadwick, of Nantucket, to them. They proved that the boat was of about five tons burden, and had always been employed as a pleasure-boat at Nantucket since she came to Nantucket, about four years ago. The plaintiffs also showed, by the United States deputy collector of Nantucket, that prior to the record of the mortgage, January 9, 1885, in the town clerk's office, the boat had never been registered, enrolled, or licensed at the port of Nantucket. On crossexamination it appeared by the records of the said custom-house that a license had been issued to the defendant on May 16, 1885, and renewed by him in 1886. There was no other evidence of record in any custom-house. The mortgage was duly recorded January 9, 1885, in the office of the town clerk of Nantucket. On this evidence the plaintiff rested his case. The defendant offered no evidence, and asked the court to instruct the jury that upon this evidence the action could not be maintained, and that they return a verdict for the defendant. This the court refused, and, it being conceded by the defendant that the evidence was true, instructed the jury that on this evidence the plaintiff was entitled to a verdict. The jury returned a verdict for the plaintiff, with nominal damages of one dollar, and the defendant alleged exceptions.

T. M. Stetson and H. B. Worth, for plaintiff.

The little boat was not a "ship or vessel of the United States," and the mortgage of it was duly recorded in the town clerk's office in Nantucket, where the mortgagor resided. Our title was then perfected, and could not be vacated by the subsequent obtaining of a license for her by the defendant. Rev. St. U. S. § 4311; Veazie v. Somerby, 5 Allen, 287; Thorndike v. Bath, 114 Mass. 118; Johnson v. Merrill, 122 Mass. 155; Dempsey v. Gardner, 127 Mass. 382.

The production of the undischarged mortgage, with its indorsements, in a suit begun after time of maturity of the debt, is evidence that the debt was in default, and not canceled. The natural indicia of the title, we claim, are in our possession after maturity, and are produced by us. Brooks v. Briggs, 32 Me. 447; Brembridge v. Osborne, 1 Stark. 374; Gibbon v. Featherstonhaugh, Id. 225; Olmsted v. Elder, 2 Sandf. 325; Davis v. Mills, 18 Pick. 394. The note was not in our possession, whether paid or unpaid. We are only sureties. In a writ of entry to foreclose, the plaintiff sues after maturity, and proves his mortgage, and rests. The truth of all the evidence being conceded, there was no occasion for the jury to pass thereon, and the verdict was rightly returned. Besides, the mortgage covered realty and personalty both. Its discharge would be important to mortgagor. Mortgagee must, under criminal penalty, make discharge. If so discharged, the defendant could easily show it. His omission to do so was a significant piece of evidence. The provision for mortgagor's possession relates to the period prior to maturity. After maturity there is no presumption that a debt has been paid; and, if a mortgagee then sues, payment is a defensive allegation, and the burden of proving it is upon a defendant. Davis v. Mills, supra.

The fact, conceded to be true by defendant, that in May, 1885, he took out a United States license for this boat, showed that he must have sworn that he was the owner of it. Rev. St. U. S. 4142, 4311, 4312. It would also tend to show that Chadwick must have conveyed to him, which would vacate Chadwick's privilege of user, even if he had not defaulted on his debt. Defendant's answer asserts ownership, and his failure to offer any evidence of a

title superior to that of Chadwick (our mortgagor) is significant that he had none such, but was merely claiming under a conveyance from Chadwick, which, whether fraudulent or not, would entitle the mortgagee to immediate possession. Coles v. Clark, 3 Cush. 402; Whitney v. Lowell, 33 Me. 318; White v. Phelps, 12 N. H. 382.

If there had been no default in the debt the mortgagée can replevy the boat from a third party who swears he owns it, and takes out a United States license to himself to use it. Such a defendant cannot assert any jus tertii. He cannot assert any right of Chadwick to the enjoyment of the boat when he denies, by his custom-house oath, any title in Chadwick. McLeod v. Bernhold, 32 Árk. 671; McConnell v. Scott, 67 Ill. 277; Gaar v. Hurd, 92 Ill. 329.

J. Brown, for defendant, cited Denny v. Williams, 5 Allen, 1.

FIELD, J. There was no evidence that the plaintiffs ever had possession of the boat, or any title to it except as mortgagees under a mortgage given by William H. Chadwick, on January 8, 1885; and there was no evidence that William H. Chadwick ever had possession of or any right or title to the boat. The plaintiffs can only recover upon their own title or right of possession. The execution and delivery of a mortgage of personal property are not evidence of title to the property included in the mortgage against a stranger. Such an act in not necessarily an act of dominion over the property itself; and, if there is no possession of the property by either the mortgagor or mortgagee, it is, with respect to the defendant, res inter alios. The mortgage in this case is not an ancient document. If the execution, delivery, and recording of a mortgage were held to create a prima facie title to personal property against a person in possession, then a prima facie right to the property of another could be created by any one at will. Chaffee v. Blaisdell, 8 N. E. Rep. 435, (October, 1886.) See Perry v. Weeks, 137 Mass. 584. Exceptions sustained.

(143 Mass. 88)

COMMONWEALTH . WALLACE.

(Supreme Judicial Court of Massachusetts. Bristol. November 24, 1886.) 1. BAWDY AND DISORDERLY HOUSES-COMPARISON OF FORMER OCCUPATION-EVIDENCE. At the trial of an indictment charging the defendant with maintaining a disorderly house, evidence for the purpose of making a comparison of the character of the defendant's occupation of the premises while he held a license, with that of the occupation of either another person or himself at some other time, is inadmissible, as involving an inquiry into a matter wholly foreign to the case.

2. SAME

RULINGS-FREQUENT PRESENCE OF DRUNKEN PERSONS ABOUT PREMISES. A request for a ruling "that evidence of drunkenness or disturbance on the street and street corner, not shown to be connected with the defendant's premises, is not competent to prove violation by the defendant of his license," must be taken to mean that the connection must be shown by direct testimony to make the evidence competent. The frequent presence of drunken persons on the street and street corner, if near the defendant's premises, might be evidence, under all the circumstances shown to exist, that these persons obtained the intoxicating liquor of the defendant on these premises.

This was an indictment in two counts. The first count charged defendant with maintaining a nuisance under chapter 101 of the Public Statutes, and the second count charged him with the maintenance of a disorderly house from the first day of March, 1886. It was admitted, on the part of the government, that defendant held a first-class license for the sale of intoxicating liquor at the corner of Cannon and Water streets, in New Bedford, being the premises numbered 107 South Water street, for one year from the first day of May, 1885, and it appeared in evidence that defendant occupied the premises next south of said 107, but which were not covered by the license. The government introduced evidence of police officers tending to show sales of

intoxicating liquors by the defendant at 107 South Water street to intoxicated persons, and that intoxicated persons were seen in and about said premises; that the sound of voices and noise could be heard within said premises on Sundays; and that intoxicated persons congregated on Sundays and other days on the sidewalk at the corner of said streets. Evidence was also introduced by the government tending to show the resorting to premises next south of said No. 107 on Sundays, and travel in and out the doorway leading to said premises south of 107, through a back doorway which was used in common by the occupants of eight or ten tenements above. Evidence was offered on the part of the defendant that no violation of the conditions of said license had been committed, and that there had been no occupation of said premises such as would create a nuisance under either count of the indictment. Upon cross-examination of one Anthony, a police officer called by the government, who testified as to the character of defendant's premises during the past year, and that he had been familiar with said premises for eight years previous, the defendant asked the witness: "What was the character of the defendant's premises, for which he held a license, during the time covered by the indictment, as compared with what it was prior to defendant's occupation under his license?" To which question the district attorney objected, and the court exéluded the question.

The jury returned a verdict of guilty on the first, and not guilty on the second, count, and the defendant alleged exceptions.

C. W. Clifford, for defendant. E. J. Sherman, Atty. Gen., for the Commonwealth.

FIELD, J. The first and third exceptions to the rulings upon the admission of testimony were waived at the argument, and the second exception must be overruled. A comparison of the character of the defendant's occupation of the premises while he held a license, with that of the occupation of either another person or of himself at some other time, would involve an inquiry into a motive wholly foreign to the case. The situation of the premises No. 107 South Water street, and of the premises next south of these, may have been such, in reference to each other, that the use made of the latter by the defendant was properly some evidence that the former were kept by him for the illegal sale of intoxicating liquors.

The request for a ruling "that evidence of drunkenness or disturbance on the street and street corner, not shown to be connected with the defendant, or with defendant's premises, is not competent to prove violation by the defendant of his license," must be taken to mean that the connection must be shown by direct testimony to make the evidence competent. The frequent presence of drunken persons on the street and street corner, if near the defendant's premises, might be evidence, under all the circumstances shown to exist, that these persons obtained the intoxicating liquor of the defendant on these premises. Com. v. Leighton, 140 Mass. 305; S. C. 6 N. E. Rep. 221. Exceptions overruled.

(143 Mass. 110)

COFFIN and others, Trustees, v. LAWRENCE.

(Supreme Judicial Court of Massachusetts. Nantucket. November 26, 1886.): 1. JOINT TENANTS AND TENANTS IN COMMON-PROPRIETORS OF COMMON AND UNDIVIDED LANDS-WARRANTS OR CALLS FOR MEETING.

Proprietors of common and undivided lands are quasi corporations or bodies politic. The calls for meetings are analogous to warrants for town meetings, are to be governed by the same rules, and should be construed liberally; and a meeting may legally act upon any subject of which the warrant gives substantial and intelligent notice to the voters.

2. SAME-LAND SET OFF.

Where a call for a meeting of the proprietors of the common and undivided lands of Nantucket, Mass., notified the proprietors that the purpose of the meeting was to act

upon the petition of one C. "for land to be set off to him near Siasconset," (which was, a part of the island of Nantucket, but having no legal, defined boundary,) and the proprietors, at the meeting thus called, voted that the petition of C. "for land near Siasconset be granted," and the lot layers laid out or set off certain lands as shown upon a map, which lay-out was accepted by the proprietors. Held, that the grant to C., which the meeting made, was fairly within the scope of the business of which the proprietors were notified by the warrant or call.

This was a writ of entry. At the trial in the superior court before BACON, J., the court directed a verdict for the tenant, which was returned, and the demandant alleged exceptions. The facts are in the opinion.

T. M. Stetson and H. B. Worth, for tenant.

Demandant, who must recover upon the strength of his own title, states a bad one. The only notice to corporators related to land outside of the village, -a very unimportant matter. The lot layers, however, proceeded to attack the village itself. The statute law, under which these ancient common lands can alone be set off in severalty by majority vote of quasi corporations, called "Proprietaries," is very rigid in its effect to secure honest dealing in these somewhat formless and nebulous bodies; especially as the quasi corporation itself does not own the land, but only exercises certain statutory powers of control or agency. The land itself belongs to individuals, (Mitchell v. Starbuck, 10 Mass. 5; Leffingwell v. Elliott, 8 Pick. 456;) and if, in effecting land titles, a meeting of more or less people attempts to proceed without petition for partition or any judicial process, it behooves them to follow strictly the statutes. In 1713, after a preamble reciting that no direction has been "given how a meeting of proprietors may be orderly and regularly called and assembled," it is enacted, "and no other affair shall be transacted, at any meeting of the proprietors, than what is expressed in the warrant or notification of such meeting." The same prohibition follows in the state law. St. 1783, c. 39. The same principle obtains at common law. Ang. & A. Corp. §§ 492, 495; People's Mut. Ins. Co. v. Westcott, 14 Gray, 440; Wiggin v. Freewill Baptist Church, 8 Metc. 311, 312. Demandant offers a title which depends upon the authority of a sort of agent, or upon the proper execution of a power. When a plaintiff relies on a deed signed per attorney, and then proceeds to show the attorney had no authority, he shows he has no title. states himself out of court. Nichols v. Todd, 2 Gray. 568; Williams v. Ingell, 21 Pick. 288; Perry v. Weeks, 137 Mass. 588; Wolcot v. Knight, 6 Mass. 419; Sparhawk v. Bullard, 1 Metc. 103; Johnson v. Neale, 6 Allen, 227; Taft v. Stevens, 3 Gray, 504; Greenl. Ev. §§ 303, 310, 315, 331, 553, 554; Jack. Real Act. 5, 6. The demandant shows no possession. The whole proceedings are very recent. There is no evidence of any ratification by the proprietors, not even lapse of time. Wiggin v. Free-will Baptist Church, 8 Metc. 310; Stevens v. Taft, 3 Gray, 487. The exceptions do not show that the demandant took any other ground, offered any other evidence, or wished to raise any other question, than the one determined.

C. W. Clifford, for demandant.

He

The lay-out was valid. The peculiar tenure of the lands in Nantucket is fully described in Mitchell v. Starbuck, 10 Mass. 5. Partition of these and other lands similarly held by a recorded vote of the proprietors, without a deed, has been sustained in several instances by this court. Folger v. Mitchell, 3 Pick. 399; Springfield v. Miller, 12 Mass. 416; Codman v. Winslow, 10 Mass. 150; Williams v. Ingell, 21 Pick. 289. See Ang. & A. Corp. c. 6, Section 13 of chapter 111 of the Public Statutes simply adopted, in relation to corporations organized thereunder, what was the settled law of this commonwealth as to all the ancient proprietaries. Plymouth Colony Laws, 197, 198; St. 1783, c. 39.

The "record of the meeting of January 25," 1886, and the lot-layers' return of the same date, were competent and sufficient evidence of title. Adams v. Frothingham, 3 Mass. 360, and the cases previously cited. And see Haven