merely the amount of the damage done to plaintiff's undivided interest.

Report from superior court, Worcester county; Chas. U. Bell, Judge.

Action by Joseph L. Proctor against John B. Proctor. From a judgment for plaintiff, defendant appealed, and the presiding judge, at request of defendant, reported the case for determination to the supreme judicial court. Judgment on finding.

Alvah M. Levy, for plaintiff. P. F. Ward, for defendant.

MORTON, J. The plaintiff and defendant and one Haynes were the owners as tenants in common of a wood lot in Lunenburg, in Worcester county. The plaintiff owned one undivided seventh, the defendant five undivided sevenths, and Haynes the remaining seventh. One Shumway, acting under the authority of the defendant, entered upon the wood lot, and cut and carried away wood and timber to the value of $175. There was no evidence that the defendant or any one on his behalf had given notice at any time to the plaintiff or the other co-tenant of his intention to cut and remove said wood and timber. This action is brought under Pub. St. c. 179, §§ 6, 7 (Rev. Laws, c. 185, §§ 4, 5), to recover the statutory damages provided in such a case. At the trial, which was by the court without a jury, the defendant admitted liability, but contended that the damages recoverable were three times the amount of the damage done to plaintiff's undivided seventh. The plaintiff contended that the damages should be assessed at three times the amount of the damage done to the whole estate. The court ruled and found in accordance with the plaintiff's contention, and from this ruling and finding the defendant appealed, and the presiding judge, at his request, reported the case for the determination of this court. If the finding is correct, judgment is to be entered for the amount assessed by the court; otherwise for three times the damage to the plaintiff's undivided seventh, or such other judgment is to be entered as justice may require.

We think that the ruling and finding were correct. The statute under which the action is brought provides, so far as material to this case, as follows: "If a joint tenant, coparcener, or tenant in common of undivided lands cuts down, destroys, or carries away any trees, timber, wood, or underwood standing or lying on such lands without

first giving thirty days' notice in writing under his hand to all the other persons interested therein, or to their respective agents or attorneys, of his intention to enter upon and improve the land, * he shall forfeit three times the amount of the damages that shall be assessed therefor, to be recovered and appropriated as provided in the following section." Pub. St. c. 179, § 6. Section 7 provides that the damages may be recovered

in an action of tort by one or more of the other co-tenants, without naming any one except the plaintiff, and one half shall be appropriated to the persons who sue and the other half to the same persons with all the other co-tenants except the defendant, to be divided amongst them in proportion to their respective interests in the land. It is plain, we think, that the damages to be assessed are the damages done to the lands as a whole, and without regard to the amount of the plaintiff's interest. The statute evidently contemplates but one action and one assessment of damages, and makes provision for the division of the damages so recovered. There is nothing which limits the right of recovery to three times the damage done to the plaintiff's undivided interest. The provision for the exclusion of the defendant from any share in the damage goes to show that the damages are to be assessed in regard to the whole land. There would be no need of such a provision if it was the purpose of the statute that only damages to the plaintiff's interest should be assessed. The fact that there may be, under this construction of the statute, as the plaintiff points out, a very great disproportion between the amount of the damage actually sustained by a plaintiff and the amount which he recovers is far from being conclusive against such a construction. The statute was intended to prevent strip and waste by tenants in common, and, with that purpose in view, imposes, and was intended to impose, a severe penalty upon a tenant who entered and cut and removed wood and timber or committed any other strip or waste without giving notice, as required, to his co-tenants. The construction which we have adopted has been given in Maine to a statute almost identical with ours. Hubbard v. Hubbard, 15 Me. 198. Judgment on finding.

(182 Mass. 413) DOLAN V. MUTUAL RESERVE FUND LIFE ASS'N. (Supreme Judicial Court of Massachusetts. Worcester. Jan. 6, 1903.) REVIEW-WAIVER OF EXCEPTIONS. 1. Exceptions not argued before the supreme judicial court will be treated as waived.

2. Where, in an action on a life insurance pol icy, the insured's age was in dispute, and there was some evidence to sustain plaintiff's contention, it was proper to refuse to direct a verdict.

Exceptions from superior court, Worcester county; Francis A. Gaskill, Judge.

Action by Dolan against the Mutual Reserve Fund Life Association. Judgment for plaintiff, and defendant excepts. Exceptions overruled.

Geo. S. Taft, Henry W. King, and Chas. M. Rice, for plaintiff. Victor J. Loring, for defendant.

MORTON, J. This is an action by the plaintiff to recover the sum of $2,000, as the

beneficiary named in a policy issued by the defendant on the life of her husband. The date of the policy was October 5, 1894, and the husband died April 17, 1897. The case has been here before, and is reported in 173 Mass. 197, 53 N. E. 398. The case is here now, as it was then, on the defendant's exceptions. Although several exceptions were taken to the rulings of the presiding judge, the only matter which has been argued relates to representations made in the application by the insured as to his age, and to the refusal of the court to order a verdict for the defendant on account of said alleged misrepresentations. We therefore treat the other exceptions as waived. The opinion of the court was, when the case was here before, that upon a policy for life insurance a material increase of age increased the risk as matter of law. It was also held that St. 1894, c. 522, § 21, was applicable, and that it was immaterial whether a representation as to age was to be regarded as a warranty or not; if false, it did not avoid the policy, unless made with intent to deceive, or unless it increased the risk. This disposes of so much of the defendant's brief and arguments as rests on the proposition that the representation is to be regarded as a warranty. In the application the insured represented his age as 58, and that he was born in 1836. Much evidence was introduced by the defendant tending to show that he was born in 1831, or earlier, and that he was considerably older than he represented that he was. But this

was controverted by the plaintiff, who introduced testimony tending to show that the statement by the insured as to his age was substantially correct. We do not see how it can be said that the plaintiff's case was supported by only a scintilla of evidence. The question was one of fact, and it was left to the jury under full and appropriate instructions which directed their attention to the importance of the matter, and in a general way to the evidence on one side and the other. The Jury have settled the question adversely to the defendant, and, without going into the evidence in detail, we do not see how it can be said that there was any error on the part of the presiding judge in refusing to take the case from them and direct a verdict for the defendant.

Exceptions overruled.

(182 Mass. 417)

BOUTELLE et al. v. CARPENTER et al. (Supreme Judicial Court of Massachusetts. Worcester. Jan. 6, 1903.) NOTES-ALTERATION-LIMITATION-ACTION IN NAME OF EXECUTOR-ACTION FOR BALANCE AFTER FORECLOSURE OF MORTGAGE.

1. An indorsement on a note made by the grantee of the equity of the property on which the note was secured by mortgage, whereby he

1. See Alteration of Instrumenta, vol. 2, Cent. Dig. § 50.

agreed to pay 7 per cent. interest, instead of 6 per cent., as provided in the note, is not an alteration of the note; and the makers of the note. sued thereon, are not entitled to credit for the extra interest paid by such grantee.

2. Pub. St. c. 197, § 6, declaring that none of the foregoing provisions as to limitations of actions shall apply to an action on a witnessed promissory note, if brought by the original payee or his executor, applies where the action is brought in the interest of an assignee of the note, in the names of the executors of the original payee, with their cousent.

3. In an action on a mortgage note against its makers to recover a balance due after foreclosure of the mortgage, they, not having been the owners of the equity at the time of the mortgage sale, may show, as bearing on the amount due, that the sale was not conducted as it should have been, and that more should have been realized,especially where the holder of the mortgage was the purchaser.

Appeal from superior court, Worcester county; Francis A. Gaskill, Judge.

Action by C. Myron Boutelle and others, executors, against Matilda E. Carpenter and others. The court found for plaintiffs. Both parties appeal. Affirmed.

John B. Scott, for plaintiffs. Burton W. Potter, for defendants.

MORTON, J. This is an action against the defendants, as makers, to recover the balance due upon a mortgage note. The note was dated September 21, 1887, and was witnessed. The mortgagee assigned the mortgage and indorsed the note, without recourse, to one Dean, who, without indorsing the note, transferred the note and mortgage to one Powers, who is the present holder thereof. In April, 1901, Powers foreclosed the mortgage, and became himself the purchaser; bidding off the property for $50, subject to a first mortgage of $6,700. The defendants were not notified of the sale. Previous to the sale they had conveyed the equity to one Thompson, who was at the sale; and, before the sale, Powers had offered to assign the note and mortgage to the defendants on payment of what was due, saying that unless he was paid he should foreclose the mortgage. The note, as originally written, was with interest at 6 per cent. Afterwards an agreement signed by Thompson was indorsed on the note, by which he agreed to pay 7 per cent. This was done without the knowledge or consent of the defendants. One question is whether this constitutes a material alteration of the note, and whether the defendants should be credited the extra interest paid by Thompson, amounting to about $300. The action is brought in the interest of Powers, in the names of the executors of the original payee, with their consent; and another question is whether the note is barred by the statute of limitations. The third and last question is whether the amount due on the note should be reduced by the sum of $800, which it is, in effect, agreed was the fair market value of the equity at the time of the foreclosure. It was agreed that if it was competent for the court to consider in this

action whether the foreclosure sale was properly conducted, and if evidence concerning the matter would be admissible under the pleadings, then the amount due on the note should be reduced by the sum of $800 aforesaid. The case was tried on agreed facts, and was heard by the court without a jury. The court found for the plaintiff, deducting the $800 aforesaid. Both parties appealed.

1. The indorsement signed by Thompson did not constitute an alteration of the note. "The original note," as said in Bank v. Hyde, 131 Mass. 77, 78, 41 Am. Rep. 193, "remains intact. It is in no respect altered or made different. The memorandum on the back [here it might be said, the indorsement] is evidence of an independent collateral agreement, and has no more effect than if it had been written on a separate piece of paper." The indorsement does not bind the defendants to pay 7 per cent., and affects only the party who signed it. See, also, Stone v. White, 8 Gray, 589. We see no ground on which the

claim of the defendants to be allowed the extra interest paid by Thompson can be sustained.

2. The action being brought in the names of and with the consent of the executors of the payee, and, the note being a witnessed note, it is clear that the action is not barred. Pub. St. c. 197, § 6; Hodges v. Holland, 19 Pick. 43; Sigourney v. Severy, 4 Cush. 176; Drury v. Vannevar, 5 Cush. 442; Rockwood v. Brown, 1 Gray, 261; Troeder v. Hyams, 153 Mass. 536, 540, 27 N. E. 775. Powers could bring the action in the name of the executors with their consent, and it is immaterial, so far as the defendants are concerned, whether the amount that is found due and is paid by them is collected by the plaintiffs for their own use, or that of Powers. The case comes within the words of the statute, and is governed by the cases cited.

3. In an action upon a mortgage note to recover the balance due after a foreclosure sale, where the mortgagors were not the owners of the equity at the time of the sale, we think that it is open to the makers of the note to show, as bearing upon the amount due, that the sale was not conducted as it should have been, and that more should have been realized, especially if the holder of the mortgage was himself the purchaser. Unless the makers of the note can do that, they would seem to be without a remedy. In the present case the issue whether the sale was properly conducted was raised by the pleadings, and evidence in regard to it was therefore admissible. And it was agreed, as already observed, that if it was competent for the court to consider whether the sale was properly conducted or not, and if evidence was admissible under the pleadings in reduction of the amount due on the note, then the court was to reduce the amount found due on the note by the sum of $800. We think that it was competent for the court to consider whether the sale was properly con

ducted, and that the evidence was admissible under the pleadings.

It follows that the judgment should be af firmed. So ordered.

(182 Mass. 371)

PERCIVAL v. CHASE.

CHASE v. PERCIVAL.

(Supreme Judicial Court of Massachusetts. Bristol. Jan. 6, 1903.)

TRESPASS-POSSESSION-LICENSE-ADVERSE POSSESSION-INSTRUCTIONS.

1. As between two persons, one having title to land, but not possession, and the other occupy. ing it with a wall, the former, by entering and tearing down the wall, acquires the necessary possession to sue for the continuing trespass of maintaining the wall; and her title is a justification for her entry, though she had previously not been in possession.

2. That requests for rulings are not given in terms cannot be complained of; the court having instructed, in effect, as requested.

3. One of two inconsistent requests for rulings having been given, the other is properly refused.

4. Possession by a licensee is the possession of the licensor, and does not prevent the latter giving possession to another.

5. Continuance for 20 years of a wall erected under a license does not necessarily give a right by adverse possession.

6. Though the description of land conveyed by deed omits a parcel, title to which had been gained by the grantor by adverse possession, yet, if the grantee receives possession thereof from the grantor of the rest of the land, she will be in as a disseisor, and her right as such will be good against the holder of the paper title.

Exceptions from superior court, Bristol county; Charles U. Bell, Judge.

Two actions,-one by Christina Percival against Zebina W. Chase; the other by Chase against Percival. Verdict in each case for Percival. Chase brings exceptions. Exceptions overruled.

Hitch & Sparrow and A. B. Collins, for exceptant. Homer W. Hervey, for exceptee.

LORING, J. These are two actions of trespass quare clausum fregit, in which the plaintiff in one action sues the plaintiff in the other. The case was sent to an auditor. He made two reports, which were put in evidence. Mrs. Percival had a verdict in each action, and the cases are here on exceptions taken by Chase. Chase and Mrs. Percival owned adjoining lots on Second street, in New Bedford. Chase bought his lot in 1887, and Mrs. Percival bought hers in 1894. Mrs. Percival's lot is south of Chase's lot. There was an old house on Chase's lot when he bought it in 1887. This he tore down, and in its place put up a store fronting on Second street, with a tenement over it, and built a driveway running under the tenement, close to the house on the Percival lot, to a new barn in the rear of his lot. There was evidence before the auditor that at the time when the store, tenement, and barn were built, there was not quite enough room for the whole driveway on the Chase lot, and that Chase went to Thornton, who was the

owner of the Percival lot at that time, and obtained permission, in constructing the side of the driveway next the Percival lot, to encroach somewhat on that lot. The level of the rear half of the Chase lot is higher than that of the Percival lot, and the wall between the two was a retaining wall; and in constructing the driveway the old retaining wall between the two lots was moved over onto the Percival lot to support Chase's new driveway to his new barn in the rear of his lot. It was also in evidence before the auditor that after Mrs. Percival bought her lot she made a demand on Chase to move the wall northward to the line where it formerly stood; that Chase did move the wall back, but not to the line of the original wall, and thereupon, in November, 1897, Mrs. Percival tore down the wall erected by Chase when he moved it back, and as a result Chase's driveway caved in and was injured. This is the trespass complained of by Chase. The trespass complained of by Mrs. Percival was for maintaining this wall after notice from her to remove it. The auditor found that a line had been established by adverse possession 2.12 feet north of the line set forth in the deeds, and "largely by reason of there having been an ́embankment wall substantially in this line for nearly the whole of this century, without any change until a few years before these suits were brought"; that the north face of the house on the Percival lot was one foot and one-half north of the deed line; and that the retaining wall erected by Chase, when he moved it back at Mrs. Percival's request, was south of the line established by adverse possession, but north of the deed line. Chase, on the other hand, denied at the trial that the wall had ever been moved by him or any one else, and offered evidence tending to show that the wall had stood where it was when torn down by Mrs. Percival for more than 20 years. There was also evidence that Chase from 1887 to the time the wall was torn down was in possession, claiming title of the land up to and including the stone wall; that the Chase land was several feet higher than the Percival land, and the wall in question, wherever it was, was a retaining wall supporting land on Chase's side of the wall. It was admitted by Mrs. Percival at the trial that the boundary line as Chase claimed it was the true deed line between the properties, established by all the ancient and modern deeds. It was agreed that the place to where Mrs. Percival claimed Chase moved the wall, and where the wall was when torn down by her, was on Chase's side of that line, but was south of where Mrs. Percival, by virtue of adverse possession as aforesaid, claimed the boundary line to be.

1. It will be convenient to consider together the first and third rulings requested by Chase, to wit: "(1) The deed from Thornton gave Mrs. Percival no title to any part of the land which at the date of her deed

65 N.E.-51

was occupied by Chase for a wall, or inclosed by a wall, so that she can recover for such encroachment in this action." "(3) Mrs. Percival, because of the description of the deed to her and to Thornton, her immediate grantor, can claim no boundary line established by any adverse possession during the ownership of Mr. Thornton or Paul Spooner, or prior to any title not consummate in 1842." We interpret the words "or prior to any title not consummate in 1842" to mean "during the ownership of any person whose title was not consummate in 1842." The deed to Thornton was made in 1866 by one John R. Thornton, executor of the will of Paul Spooner, and conveyed "a certain lot of land on Second street conveyed to Paul Spooner by Gideon Allen, administrator, by deed dated October 29, 1842." The deed from Thornton to Mrs. Percival conveyed "a certain lot of land, with the buildings thereon standing; being one of the lots conveyed to me by deed of John R. Thornton, executor, dated July 28, 1866, and being the same lot conveyed to Paul Spooner by Gideon Allen, administrator, by deed dated October 29, 1842, to which deeds reference may be had for a more particular description." The action of trespass quare clausum fregit is an action for the violation of the plaintiff's right of possession, not of her title. A plaintiff who has the title, but 'who was not in possession when the act complained of was done, cannot maintain an action of trespass until he has made an entry. Chit. Pl. (16th Am. Ed.) *195; Taylor v. Townsend, 8 Mass. 411, 415, 5 Am. Dec. 107; Emerson v. Thompson, 2 Pick. 473, 484; Bigelow v. Jones, 10 Pick, 161, 164; Tyler v. Smith, 8 Metc. (Mass.) 599, 604. The only bearing which Mrs. Percival's title had in the action brought by her was that if she had the title she could maintain the action by showing that she entered and threw down the wall. If she had title, that entry gave her the necessary possession to sue for the continuing trespass consisting in the maintenance of the wall. Chit. Pl. (16th Am. Ed.) *198; Allen v. Thayer, 17 Mass. 299, 302; Blood v. Wood, 1 Metc. (Mass.) 528, 533; Silloway v. Brown, 12 Allen, 30, 38. And so far as the action brought by Chase is concerned, if Mrs. Per cival had the title to the 22-foot strip, that was a justification for the entry, even if that strip up to that time had not been in her possession. Inasmuch as the court instructed the jury that the deeds gave Mrs. Percival no title to the strip in question, the plaintiff cannot complain that these two requests for rulings were not given in terms.

2. The second request is inconsistent with the first request, and, the first request having been given, the second was rightly refused. In accordance with the first request, the jury were instructed that the deed from Thornton to Mrs. Percival did not cover the 2-foot strip in question.. If it did not, Mrs. Percival's right to maintain an action de

pended upon whether she took possession of the strip or not. If the wall which was standing when Thornton conveyed to Mrs. Percival was erected by Chase under a license, and if Chase was occupying the land on his side of that wall as a licensee of Thornton, that possession was the possession of Thornton, and did not prevent his delivering possession of the strip to Mrs. Percival. If Mrs. Percival got no title to the strip, she could not gain a right to maintain this action of trespass quare clausum fregit by a subsequent entry of any kind, and the instruction was rightly refused.

3. The fourth request for instruction has not been argued, and must be treated as waived. It is manifestly wrong. There was no aspect of the evidence which would make the true deed line run through the wall, wherever situated, no matter whether that wall had been built under license, and no matter how long or how it had been maintained. If the wall had not been moved for 20 years before it was taken down by Mrs. Percival, it would not necessarily follow that each action should be decided for Chase. If the wall was erected under a license given by Thornton, its continuance for 20 years would not be decisive.

4. The general exception to the instructions given raises no question not raised by the requests refused.

5. Chase has argued on his brief a question which was not raised by the rulings, and that is this: Under the admission of Mrs. Percival that she has no title to the disputed strip under the deeds, the right to maintain these actions depended upon priority of possession. If a ruling to that effect nad been asked for, it should have been given. The branch of the case to which such a ruling is addressed was altogether ignored by the presiding judge, so far as the charge printed in the record goes. The argument of the plaintiff that a title gained by adverse possession can no more be conveyed by parol than any other title is true. But it does not follow from that that if, in the description of the land conveyed by a deed, a parcel was omitted, title to which had been gained by adverse possession, the grantee would be without remedy. If in such a case the grantee received possession of the disputed strip from the grantor of the rest of the estate, and the grantee took possession, claiming a fee, she would be in as a disseisor. Her right as a desseisor would be good against the holder of the paper title, because his title was barred by continuous adverse possession for 20 years. Wishart v. McKnight, 178 Mass. 356, 59 N. E. 1028, 86 Am. St. Rep. 486. And the title as desseisor in possession is good as against the rest of the world.. Wishart v. McKnight, 178 Mass. 356, 362, 59 N. E. 1028, 86 Am. St. Rep. 486; Slater v. Rawson, 6 Metc. (Mass.) 439; Hubbard v. Little, 9 Cush. 175; Currier v. Gale, 9 Allen, 522; Pol. & W. Possession, 95-98. Such a disseisor, having

a title good against the owner of the true title because it is barred, and a title good against the world because she is in posses-. sion and has a right on that ground against persons subsequently taking possession from her, has a good title. Had Chase raised the question which he now seeks to argue, the question should have been left to the jury whether Mrs. Percival took possession of the 22-foot strip when she entered. The evidence before us does not disclose the facts which would be material on that point, as is to be expected when the case was not tried on that question. It is plain that Chase's contention that Mrs. Percival's entry was coextensive with the deed to her is not correct. The house was a foot or more over the deed line. She took possession of that portion of the disputed strip covered by the house, even if it was not covered by the deed. How much of the remaining length of the lot was covered by the retaining wall, does not appear. And as we have said, if Chase was occupying the land north of the retaining wall by license, his occupation did not prevent Mrs. Percival from taking possession. The court told the jury that, if a new division line had been established by adverse user, they should find for Mrs. Percival. This was not correct, for a new division line might have been established before Mrs. Percival had anything to do with the premises. If it was, Mrs. Percival could not take advantage of it, unless it had been conveyed to her, or unless she took, in fact, possession from one who with her had had continuous possession for 20 years. But that objection to the charge was not raised in the court below, and is not open here. The case at bar was tried on the admission "that the boundary line, as Chase claimed it, was the true deed line between the properties, established by all the ancient and modern deeds." It is not necessary to decide whether that admission should have been made. The title to Mrs. Percival's lot was as follows: By deed from Bourne to Barney, 1810; from Barney's administrator to Spooner, 1842; from Spooner's executor to Thornton, 1866; and from Thornton to Mrs. Percival, 1894. The title

to Chase's lot was as follows: Jenney to Nathaniel Hathaway, 1803; Hathaway to Johnson, 1806; Johnson to Williams, 1819; heirs of Williams to Chase, 1887. The deed from Bourne to Barney in 1810 described the land as "bounding * * * on the north by land formerly of Nathaniel Hathaway.” The same description is found in the deed to Spooner in 1842. The deed from Spooner's executor to Thornton is "a certain lot of land on Second street, conveyed to Paul Spooner by Gideon Allen, administrator, by deed dated October 29, 1842"; and the description in the deed to Mrs. Percival is, in substance, the same. Had the land conveyed been described in each case as bounded on the north by the division line between the granted premises and the lot next north of