of ownership such as voting, neither have the Proprietors had similar possession, and its possession of the land has been by virtue of other rights which it was bound to exercise for the benefit of all owners.

"This is a species of corporation different from corporations in general. The statutes take away no rights from the individuals composing such a corporation, which, as tenants in common, they had before they were incorporated, but, on the contrary, give them new powers. Whenever individuals are seised, as tenants in common, in their own several rights, they are, in the manner pointed out by law, authorized to incorporate for the purposes and with the powers expressed in the statutes, and are, by such an incorporation, seised as a corporation, and that without any corporate act done."

The relation between the owners of the land held in common and the corporation established by them is peculiar. The parties do not act at arms' length and independent of each other. On the contrary the owners continue in many respects to be tenants in common as to the land, while the corporation exists for the benefit of all and cannot act adversely to any of those tenants without violation of its duty to protect the interests of all. Plainly at the beginning in 1710 and 1713 the ownership of the undrawn lots was in the Commoners. They were not granted then to the corporation known as the Proprietors. This is the starting point. There is no grant or vote to convey to the Proprietors at any time subsequent. On the contrary there is evidence of assumption of continued ownership by the Commoners. The votes to convey rights by the Commoners in 1722 and 1770 at least were evidence and perhaps "sufficient proof of title and seisin" and raised a presumption of sufficient seisin in the Commoners to enable them to convey and vest title in the grantee. Gloucester v. Gaffney, 8 Allen, 11, 13. It is argued by the defendants that the Proprietors had no other source except the undrawn rights from which to make its grants in 1767 and to make payments to its clerk and employés. While it does not appear whence the authority to make these concessions was derived, conceivably it may have come from the temporary use of the numerous rights whose ownership has been lost sight of. At all events it is not a necessary conclusion that it arose from disseisin by the corporation of the rights of the Commoners and its successor, the town.

The master has found that neither the Commoners nor the town nor the Proprietors have enjoyed pasturage of the undrawn rights at any time. While the town and Commoners have never had actual possession in the sense

The record fails to disclose any positive act by the Proprietors which constitutes either ouster of the Commoners or the town or active possession of their rights. It is to be noted that the Proprietors as a corporation did not have independent title to the land. The corporation had seisin simply for the mutual advantages of all the tenants in common. For these reasons its conduct in respect of acquiring title by adverse possession or ousting the right owners stands on a less favorable footing than does that of tenants in common. Yet it is the general rule that possession of one tenant in common of the common estate is not adverse to his cotenants but is consistent with their title. An act to amount to dispossession or ouster must be decisive and unequivocal and evince a settled purpose to exclude the cotenant from all enjoyment of his title. Facts sufficient to show such a purpose will vary with each case and no universal test can be formulated. Lefavour v. Homan, 3 Allen, 354; Bellis v. Bellis, 122 Mass. 414; Ingalls v. Newhall, 139 Mass. 268, 30 N. E. 96; Parker v. Proprietors, 3 Metc. 99, 37 Am. Dec. 121.

Springfield v. Miller, 12 Mass. 415, on which the defendants strongly rely, is distinguishable on the ground that there was an initial grant by the Commoners of an entire tract to the Proprietors. In the case at bar the Commoners made no grant until that to the town in 1788. Rickard v. Rickard, 13 Pick. 251, and other like cases on which the defendants depend were cases involving rights of tenants in common and had nothing to do with a corporation of Commoners or Proprietors.

The most significant circumstance in the case at bar is that from the time of the grant by the Commoners to the town in 1788 until 1893 there was no definite and positive demand by the town in assertion of its rights. But there was not until 1893 any direct refusal by the Proprietors to recognize the town as a right owner. From time to time the town took action looking toward an investigation and assertion of its rights. The relation of the corporation known as the Proprietors to the owners in common of the land, if not that of trustee to cestui que trust, is akin to that relation and it is difficult to infer from equivocal acts a purpose to violate the duties arising out of that relationship and to disseise or oust the right owner. There was no positive denial by the Proprietors of the rights There has not been of the town until 1893. time since then for adverse possession to In view of all these pecuripen into title.

The relation, to the owners in common of land, of a corporation of them, reorganized under Rev. St. 1836, c. 43 (now Rev. Laws, c. 123), providing for incorporation of owners of common lands, and having seisin simply for the mutual benefit of all the tenants in common, being akin to that of trustee to cestui que trust, a purpose by it to disseise and oust the right owners and acquire title by adverse possession cannot be inferred from equivocal acts, as much even as between tenants in common. [Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 315-322; Dec. Dig. § 61.*]

2. TENANCY IN COMMON (§ 55*)-ACTIONS LACHES.

A deed by a corporation of the owners in common of land being not merely voidable, but void at its inception, because not, authorized by vote of two-thirds in number of the right owners, as required by Rev. Laws, c. 123, § 14, the objection of laches cannot be made to a suit by right owners to set aside the deed.

[Ed. Note.-For other cases, see Tenancy in Common, Cent. Dig. §§ 140-156; Dec. Dig. 8 55.*]

and 1710 other inhabitants of Ipswich were admitted as Commoners and an apportionment of the land made, though not in equal proportions, among the old and new Commoners. Rights uniformly described by numbers were established, as follows: 268 old rights, 224 new rights, both relating to upland, and 108 old marsh rights and 111 new marsh rights. Originally these were represented by lots laid out in severalty and to some extent marked on the ground, but whatever ownership or occupation in severalty existed was slight and disappeared long ago and the right owners have conducted themselves for nearly or quite 200 years as tenants in common and should be so considered. See Proprietors of Jeffries Neck Pasture v. Ipswich, 153 Mass. 42, 26 N. E. 239. In 1710 a list of owners was made with the numbers of the lots affixed to the names. Other lists were made in 1713, two lists in 1748-49, and one in 1837, and another by the last "pounder" or keeper of the pasture. In all lists there are certain rights marked "undrawn." While these undrawn rights are not identical in all the lists, the master has found that there are 11 old and 18 new rights which are undrawn and which are equal to 19.64 rights out of a total of 424.48 when approximately all the rights have been reduced to terms of old rights for convenience of description. A

Two suits, one by the Inhabitants of Ipswich, the other by one Hobbs, both against the Proprietors of Jeffries Neck Pasture and others. Reserved for the full court. Decree for plaintiffs.

Geo. H. W. Hayes, of Ipswich, and Horace I. Bartlett, of Newburyport, for plaintiffs. Chas. A. Sayward, of Ipswich, for defendants.

RUGG, C. J. These are bills in equity whereby the plaintiffs seek to set aside a deed made by the defendant Proprietors to the defendant Clark. The Proprietors of Jeffries Neck Pasture (hereafter called the Proprietors) is a corporation existing at least since about 1713 and formally incorporated or reorganized in 1837 under Rev. St. c. 43, now R. L. c. 123, which provides for the incorporation of owners of common lands. The plaintiffs contend that they are owners of rights in this corporation, and that the deed in question is void on the ground that its execution and delivery were not authorized by a vote of two-thirds in number of the right owners as required by R. L. c. 123, § 14.

these undrawn rights. The master has found that it is in the town of Ipswich through a conveyance made to it by the Commoners in 1788. The defendant corporation claims title by adverse possession.

[1] The salient facts upon which rest the decision of this question are these: It does not appear that either the town or its predecessor, the Commoners, actually enjoyed pasturage by virtue of undrawn rights. In 1723 the Commoners pleaded in an action brought by Samuel Tilton that they had no rights in common land left undisposed of. The facts show that this plea was not true and the defendants are not in a position to claim an estoppel by reason of the plea. Assuming that their votes to that end were effective, the Commoners granted two undrawn rights to two different persons in 1722 and two other such rights in 1770, the Proprietors two in 1767 and another later after conference with the Commoners' clerk to ascertain whether the grantee was entitled thereto. There was discussion from time to time touching the rights of Commoners and later of the town in the undrawn rights. The Proprietors paid obligations to its clerk and employés in pasturage, but it never was expressed to be in respect of undrawn rights and there was no relation between the value of the undrawn rights and the pasturage given for the service or debt.

provincial history of this commonwealth, describes those who owned undivided tracts of land as tenants in common by virtue of a grant from the government to several persons usually for purposes of settlement and the establishment of a town. Higbee v. Rice, 5 Mass. 349, 4 Am. Dec. 63; Attorney General v. Tarr, 148 Mass. 309-311, 19 N. E. 358, 2 L. R. A. 87. From early times they have been enabled to act as a corporation. But as was said in Proprietors of Monumoi Great Beach v. Rogers, 1 Mass. 159, 164:

new powers.

"This is a species of corporation different from corporations in general. The statutes take away no rights from the individuals composing such a corporation, which, as tenants in common, they had before they were incorporated, but, on the contrary, give them Whenever individuals are seised, as tenants in common, in their own several rights, they are, in the manner pointed out by law, authorized to incorporate for the purposes and with the powers expressed in the statutes, and are, by such an incorporation, seised as a corporation, and that without any corporate act done."

The relation between the owners of the land held in common and the corporation established by them is peculiar. The parties do not act at arms' length and independent of each other. On the contrary the owners continue in many respects to be tenants in common as to the land, while the corporation exists for the benefit of all and cannot act adversely to any of those tenants without violation of its duty to protect the interests of all.

Plainly at the beginning in 1710 and 1713 the ownership of the undrawn lots was in the Commoners. They were not granted then to the corporation known as the Proprietors. This is the starting point. There is no grant or vote to convey to the Proprietors at any time subsequent. On the contrary there is evidence of assumption of continued ownership by the Commoners. The votes to convey rights by the Commoners in 1722 and 1770 at least were evidence and perhaps "sufficient proof of title and seisin" and raised a presumption of sufficient seisin in the Commoners to enable them to convey and vest title in the grantee. Gloucester v. Gaffney, 8 Allen, 11, 13. It is argued by the defendants that the Proprietors had no other source except the undrawn rights from which to make its grants in 1767 and to make payments to its clerk and employés. While it does not appear whence the authority to make these concessions was derived, conceivably it may have come from the temporary use of the numerous rights whose ownership has been lost sight of. At all events it is not a necessary conclusion that it arose from disseisin by the corporation of the rights of the Commoners and its successor, the town.

The master has found that neither the Commoners nor the town nor the Proprietors have enjoyed pasturage of the undrawn rights at any time. While the town and Commoners have never had actual possession in the sense

virtue of the rights or the exercise of powers of ownership such as voting, neither have the Proprietors had similar possession, and its possession of the land has been by virtue of other rights which it was bound to exercise for the benefit of all owners.

The record fails to disclose any positive act by the Proprietors which constitutes either ouster of the Commoners or the town or active possession of their rights. It is to be noted that the Proprietors as a corporation did not have independent title to the land. The corporation had seisin simply for the mutual advantages of all the tenants in common. For these reasons its conduct in respect of acquiring title by adverse possession or ousting the right owners stands on a less favorable footing than does that of tenants in common. Yet it is the general rule that possession of one tenant in common of the common estate is not adverse to his cotenants but is consistent with their title. An act to amount to dispossession or ouster must be decisive and unequivocal and evince a settled purpose to exclude the cotenant from all enjoyment of his title. Facts sufficient to show such a purpose will vary with each case and no universal test can be formulated. Lefavour v. Homan, 3 Allen, 354; Bellis v. Bellis, 122 Mass. 414; Ingalls v. Newhall, 139 Mass. 268, 30 N. E. 96; Parker v. Proprietors, 3 Metc. 99, 37 Am. Dec. 121.

Springfield v. Miller, 12 Mass. 415, on which the defendants strongly rely, is distinguishable on the ground that there was an initial grant by the Commoners of an entire tract to the Proprietors. In the case at bar the Commoners made no grant until that to the town in 1788. Rickard v. Rickard, 13 Pick. 251, and other like cases on which the defendants depend were cases involving rights of tenants in common and had nothing to do with a corporation of Commoners or Proprietors.

The most significant circumstance in the case at bar is that from the time of the grant by the Commoners to the town in 1788 until 1893 there was no definite and positive demand by the town in assertion of its rights. But there was not until 1893 any direct refusal by the Proprietors to recognize the town as a right owner. From time to time the town took action looking toward an investigation and assertion of its rights. The relation of the corporation known as the Proprietors to the owners in common of the land, if not that of trustee to cestui que trust, is akin to that relation and it is difficult to infer from equivocal acts a purpose to violate the duties arising out of that relationship and to disseise or oust the right owner. There was no positive denial by the Proprietors of the rights of the town until 1893. There has not been time since then for adverse possession to ripen into title. In view of all these pecu

do not require a finding of ouster or adverse possession by the defendant corporation and that the finding of the master that the town is still a right owner was correct.

The result follows from this conclusion that the vote to sell adopted in 1896 under the authority of which the deed from the Proprietors to the defendant Clark was executed was not passed by the votes of two-thirds in number of the right owners in the Proprietors, and hence that the deed under which the defendant Clark claims was void.

It would seem also that the same consequence must ensue from the finding of the master that 61.43 rights (some of these being marsh rights more divided in number and possibility of ownership) out of the total 424.48 rights have been lost sight of and the owners are unknown. Certainly facts enough are not reported respecting these rights to warrant the inference that the title to them has been acquired through ouster or adverse possession by the Proprietors.

[2] As the deed from the Proprietors to the defendant Clark was not merely voidable but void at its inception, because not authorized by such a vote of the members of the defendant corporation as is required by the statute, no question of laches arises. It is not contended that the plaintiffs' right to maintain the bill is barred by the statute of limitations.

reported, that defendant was not negligent in failing to watch the agent more sharply and discover his misconduct more quickly could not be held erroneous as a matter of law on review.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2900, 2939-2941; Dec. Dig. § 704.*]

3. WAREHOUSEMEN (§ 34*)-CONVERSION OF GOODS-DEFENSES-LOAN.

70 bales of rags and issued receipts therefor to A warehouse company's agent, having sold defendants, when the warehouse company had no rags in its warehouse, later changed the marks on 70 bales purchased by the agent for delivered them to defendants on the receipts. the warehouse company from plaintiffs and Title to the rags had been retained by plaintiffs until paid for, and, payment not having been made, except for 20 bales, plaintiffs sued defendants for conversion. Thereafter the warehouse company delivered to plaintiffs $1,874.84 (the value of the 50 bales), taking from plaintiffs an instrument reciting that the amount so delivered was a loan without interest, to be held by defendants or any other person were liable to plaintiffs pending the ascertainment whether plaintiffs for the conversion of the rags, and that in case plaintiffs recovered from defendants or any other person for such conversion, plaintiffs agreed to refund the loan to the warehouse company at the same time and in the same proportion as recovery should be made, the instrument involving no personal liability, but simply a liability to repay from any funds recovered from defendants. Held, that such payment constituted a loan, and was not a payment by the warehouse company of plaintiff's claim against it for its conversion of the rags, so as to vest title thereto in it.

[Ed. Note. For other cases, see Warehouse

awarding them costs.

Ordered accordingly.

(218 Mass. 518)

Report from Superior Court, Suffolk County; Jabez Fox, Judge.

Actions by Julius Rosenberg and others against the National Dock & Storage Warehouse Company and by Max Rubin and others

STORAGE WAREHOUSE CO. RUBIN et al. v. ROSENBERG et al. (Supreme Judicial Court of Massachusetts. Suffolk. Sept. 11, 1914.)

1. PRINCIPAL AND AGENT (§ 155*)—LIABILITY TO THIRD PERSONS - WAREHOUSE RECEIPTS RECEIPTS FOR GOODS NOT DELIV ERED LIABILITY OF WAREHOUSEMEN-STATUTES.

St. 1907, c. 582, § 21, providing that a warehouseman shall be liable to the holder of a receipt, for damages caused by the nonexistence of goods, or by the failure of the goods to correspond with the description thereof in the receipt at the time of its issuance, did not change the Massachusetts rule that a warehouseman is not liable where his agent with authority to issue receipts on the delivery of goods issues a receipt for goods which have not been delivered.

port from superior court. Judgment ordered for defendant in the first case, and for plaintiffs in the second.

Lee M. Friedman and Friedman & Atherton, all of Boston, for plaintiff Rosenberg Bros. Robt. Homans and Lewis Goldberg, both of Boston, for plaintiff Rubin and for defendant National Dock & Storage Warehouse Co.

LORING, J. These two actions grow out of a purchase of rags made by Rosenberg Bros. (the plaintiffs in the first action) from one Ripley, who was the manager of the warehouse of the defendant warehouse company. At the date of the sale in question Ripley had no rags in the warehouse.

In

ant warehouse company for 70 bales. This receipt was in the usual form, signed by him as general manager, but no marks were given on it for the bales. This was on January 28, of the following March