Trust. Frauds, Statute of. Nuisance. Negligence, Of one owning or controlling real estate.
In an action for personal injuries alleged to have been sustained by reason of a defective condition of the defendant's land at its junction with a public sidewalk, where it appears that at the time of the accident the land in question was held by a person other than the defendant under a deed absolute on its face, under R.L.c. 147, § 1, the plaintiff cannot show by oral evidence that the defendant formerly owned the land and conveyed it with an understanding of the parties to the conveyance that the defendant should retain the beneficial interest in the land and should receive the rents and profits; but, if the plaintiff could prove such a beneficial interest in the defendant, that would not make the defendant liable for injuries caused by the alleged defect without showing that the defendant was in occupation of the land or had undertaken its management and control.
BRALEY, J.
By the plaintiff's discontinuance against McQuesten, and the verdict ordered for Dorr, the defendant Bangs remained as the only adversary party, and unless some competent evidence was introduced connecting him with the responsible ownership or efficient control of the premises, the defective condition of which was alleged as the cause of the accident, the action cannot be maintained. Baker v. Tibbets, 162 Mass. 468, 469. Maloney v. Hayes, 206 Mass. 1.
The record title at that time having stood in the name of one Barlow under a conveyance in fee, absolute upon its face, with no proof that the consideration had been furnished by the defendant, parol evidence, that the parties understood, that Bangs should retain the beneficial interest, and receive the rents and profits, was incompetent under our statute relating to the creation of trusts in land, and should have been excluded. R.L.c. 147, § 1. Blodgett v. Hildreth, 103 Mass. 484. Urann v. Coates, 109 Mass. 581, 585. Twomey v. Crowley, 137 Mass. 184.
But, even if given the probative force for which the plaintiff contends, the defendant's equitable interest was insufficient to support the verdict. The defendant is not shown to have been in occupation, or to have undertaken the management and control of the property as if it were his own, and the legal title having been in the trustee he alone would be liable personally for the plaintiff's injuries. Earle v. Hall, 2 Met. 353, 358, 360. Shepard v. Creamer, 160 Mass. 496. Baker v. Tibbetts, 162 Mass. 468, 469, 470. Falardeau v. Boston Art Students' Association, 182 Mass. 405. The rulings requested having directed the attention of the judge to this initial difficulty, which the plaintiff had not overcome, a verdict for the defendant should have been ordered.
Exceptions sustained.