Adverse Possesion. Limitations, Statute of. If one is put in possession of land under an oral agreement that when he has performed certain services he shall be given a deed of the land, and after having performed the services demands the deed, which at first is promised and later is refused, and if this person thereafter continues to occupy the land for more than twenty years, continuously asserting his right of possession and his right to receive a deed, his possession is adverse and he has established a title by limitation against the holder of the record title.
If one is in possession of land under an oral agreement for its conveyance to him upon the performance by him of certain services, which he has performed, and has demanded a deed which has been refused, so that his possession has become adverse to the holder of the record title, and if the holder of that title attempts to eject him, and he resists successfully and brings a suit in equity against such holder of the record title to enjoin the threatened eviction, asking also for the specific performance of the agreement to give him a deed, and this suit is dismissed, but he continues his possession under a claim of right, the bringing of the suit in which he has asserted his right of possession, does not interrupt the period of his adverse possession or stop the running of the statute of limitations.
BRALEY, J.
By the parol contract the tenants' mother, the purchaser, entered into the exclusive occupation of the demanded premises in 1872, which continued until her death in 1910. The title, however, was not to pass until the consideration had been paid, and in 1882, having rendered the services agreed upon, she asked for a deed in accordance with the agreement. But, although assured that the vendor's promise would be kept, no deed ever has been given, and the demandants, who under intermediate devises have succeeded to the record ownership, now seek to recover the land.
It is settled by our decisions in Sumner v. Stevens, 6 Met. 337, 338, Wheeler v. Laird, 147 Mass. 421, and Bond v. O'Gara, 177 Mass. 139, that where under an oral contract for the sale of lands the purchaser enters and continues in unopposed and exclusive occupancy, his intention to take as owner is manifest, and until the owner of record asserts his title and regains possession the occupation by the purchaser is adverse. The purchaser having fully performed her part of the contract in 1882, performance by the vendor then became due. If thereafter the possession of the tenants' ancestor uninterruptedly continued for twenty or more years, the action was barred in 1902, nine years before the date of the writ. Pub. Sts. c. 173, § 2; c. 196, § 1. R.L.c. 179, § 2; c. 202, §§ 20, 22. Brown v. King, 5 Met. 173. Johnson v. Bean, 119 Mass. 271. Bigelow Carpet Co. v. Wiggin, 209 Mass. 542. Melvin v. Proprietors of Locks Canals, 5 Met. 15.
The demandants contend, that the proceedings in equity instituted in 1893, when they proposed to eject the tenants' mother from the premises, interrupted the running of the statute. It is true that, while she sought injunctive relief to prevent a threatened eviction, the bill also asked for specific performance, and upon demurrer it was dismissed. But this was an incident or a part only of her claim of exclusive ownership in bar of the attempt of ouster. The right to stop the acquisition of a prescriptive title, is a right possessed by the record owner of the land or his privies in estate. It is for this reason that the possession of the disseisor must be open and notorious or it is not adverse. Currier v. Gale, 3 Allen, 328, 330. A demand for a record title by a purchaser in possession, to which but for the statute of frauds no defence is shown by the report, was not as matter of law inconsistent with the assertion of any and all other rights enabling her to retain the premises. Jordan v. Riley, 178 Mass. 524. Bond v. O'Gara, 177 Mass. 139, 143. The allegations of the bill were not conclusive proof that the claim of ownership had been subordinated to the sole contingency of obtaining the promised conveyance, and that all other rights had been abandoned, but disclose an intention to rely upon every ground of affirmative defence when her rights were unjustifiably ignored and assailed. The ruling having been unqualified that the proceedings in equity stopped the running of the statute, as well as negatived any claim to the acquisition of title by prescription, it was erroneous, and the tenants under the terms of the report are entitled to judgment.
So ordered.