Bates v. Norcross
31 Mass. 224
| Mass. | 1833
Wilde J.

delivered the opinion of the Court. The demandant, to establish* his title, relies on a deed to him from one Jonas Blodgett, and the tenant denies that any thing passed by that deed, because Blodgett was disseised of the demanded premises at the time of the conveyance. To sustain this objection it is incumbent on the tenant to show an actual disseisin of Blodgett, so as to turn his estate into a right of entry or right of action ; and it is not sufficient to show such acts as Blodgett might elect to consider as a disseisin for the sake of the remedy, as there is no evidence or pretence that he ever elected so to treat the acts relied on in the defence.

To constitute a disseisin in fact there must be a wrongful entry of a person claiming the freehold, and an actual ouster or expulsion of the true owner, or some other act which is equivalent. “ A bare entry on another,” says Lord Holt, “ without an expulsion, makes such a seisin' only that the law will adjudge him in possession that has the right; but it will not work a disseisin or abatement without actual expulsion.” Anon. Salk. 246. Littleton defines a disseisin to be, where a man *228entereth into any lands or tenements where his entry is not congeable, and ousteth him which hath the freehold ; and Lord Coke confirms the definition. In the case of the Proprs. Kennebeck Purchase v. Springer, 4 Mass. R. 418, Parsons C. J. lays down the same doctrine. “ To constitute an ouster of him who was seised, the disseisor must have the actual exclusive occupation of the land, claiming to hold it against him who was seised, or he must actually turn him out of possession.” In cases however of wild and uncultivated lands, where the proprietor has only a constructive possession, a tortious entry and open exclusive occupation and improvement are considered as tantamount to entry and ouster. Small v. Procter, 15 Mass. R. 495. In such cases, says Parsons C. J., “ when a disseisor claims to be seised by his entry and occupation, his seisin cannot extend farther than his actual exclusive occupation ; for no farther can the party seised be considered as ousted : for the acts of a wrong-doer must be construed strictly, when he claims a benefit from his own wrong.” 4 Mass. R. 418.

Upon the facts reported it is very clear, that although the tenant had entered on the land demanded before the convey anee from Blodgett to the demandant, he never had the exclusive possession of any part of it by open occupation and improvement, for it is admitted that the land demanded always has been open unenclosed woodland. Blodgett therefore ban never been disseised in fact, according to the principles laid down in the cases referred to, and the objection to the demandant’s title cannot he sustained, unless the conveyance from Timothy Packard to the tenant and his entry under it, amount to a disseisin and constructive ouster of Blodgett. The tenant’s counsel contend that such is the legal effect of that conveyance, which being duly acknowledged and recorded in pursuance of the statute of 1783, c. 37, was valid to pass the premises, without any other act or ceremony in the law whatsoever, and therefore operated as a feoffment at common law.

Whether a feoffment would have the effect supposed, at the present day, is a question upon which learned jurists disagree, but which it is not necessary to consider in the preset:, case.

*229In the case of Varick & al. v. Jackson, 2 Wendell, 203, he chancellor remarks, that “by a careful examination of the authorities, it will be found that there could be no disseisin in fact, except by the wrongful entry of a person claiming the freehold, and an actual ouster or expulsion of the true owner, or by some other act which was tantamount; such as a common law conveyance, with livery of seisin, by a person actually seised of an estate of freehold in the premises ; or some one lawfully in possession representing the freeholder,” &c. That a feoffment according to the ancient doctrine had a more large and transcendent operation, must be admitted. Before the case of Taylor v. Horde, 1 Burr. 60, it was the settled doctrine, as it seems, that a feoffment would create an estate of freehold in the feoffee, although none was in the feoffor at the time of the feoffment. It was sufficient if the feoffor had possession, however slender or naked or tortious his possession might be. But the case of Taylor v. Horde and subsequent decisions have very much broken in upon the ancient doctrine as to the sweeping efficacy of a feoffment to work a disseisin in fact against the will of the owner, in cases where the feoffor is not seised, but has only a mere naked possession. The subject is discussed and the authorities are cited and commented upon by Chancellor Kent, in his Commentaries, with his usual ability and force, and he expresses a strong opinion m favor of the doctrine laid down by Lord Mansfield in the case of Taylor v. Horde. “ The good sense and liberal views which dictated the decision in Taylor v. Horde, he says, seem to have finally prevailed in Westminster Hall, notwithstanding the strong opposition which that case met with from the profession. The courts will no longer endure the old and exploded theory of disseisin. They now require something more than mere feoffments and leases to work, in every case, the absolute and perilous consequences of a disseisin in fact.” 4 Kent’s Com. 475.

But, as already remarked, it is not necessary to decide as to the operation of a feoffment, as the conveyance set up in defence is not such a conveyance, but a conveyance under the statute, and divested no rights but those of the grantor. Varick v. Jackson, 2 Wendell, 203. The words of the statute are, *230“ that all deeds or other conveyances of any lands &c., signed and sealed by the party granting the same, having good and laioful right or authority thereunto, and acknowledged by such grantor or grantors, before a justice of the peace &c., and re corded at length in the registry of deeds &c., shall be valid to pass the same, without any other act or ceremony in the law whatever.” The words “ having good and lawful right or authority,” are material, and indicate the intention of the statute, that the right of the grantor only should pass by such conveyance. If the grantor had no right, Sien nothing would pass by his deed. And such has been the construction of the statute. In the case of Marston v. Hobbs, 2 Mass. R. 439, which was an action of covenant broken, the title set up by the defendant was derived from a constable’s sale for non-payment of taxes, and Parsons C. J. remarks, that “if the defendant had not shown to the jury an authority in the constable to make the conveyance, he must have failed, notwithstanding the registry of the deed, which supplies the want of livery of seisin only where the grantor has right to convey.” The same construction of the statute as to the effect of a constable’s deed, is recognised in Pray v. Pierce, 7 Mass. R. 381. So in the case of Little v. Megquier, 2 Greenl. 178, it was decided that an entry on land under a deed recorded, and pay ment of taxes, were no evidence of a disseisin of the true owner, unless he who entered had continued openly to occupy and improve it. In the present case it does not appear tha Timothy Packard, when he conveyed to the tenant, was seised of the granted premises. At the most, he had but a naked possession under his deed from Ebenezer Davison, whose title does not appear to have been derived from any one having a lawful possession or seisin. The true owner therefore was not disseised by operation of these conveyances.

But it has been argued, that although the deed from Packard to the tenant did not operate as a disseisin, yet as he entered under color of that conveyance, he thereby acquired a seisin, and that this fact, being made known to Blodgett, operated as a disseisin, and is to be considered as tantamount to an ouster or expulsion. It is not, however, on this report necessary to determine whether this position can be maintained, *231for there is no evidence of any notice to Blodgett. It has been argued that the registry of the deed is presumptive notice; but we think not. It is only evidence of notice to after-purchasers under the same grantor. To hold the proprietors of land to take notice of the records of deeds, to determine whether some stranger has without right made conveyances of their lands, would be a most dangerous doctrine, and cannot be sustained with any color of reason or authority. Nor is there any evidence of notice to the demandant, if that fact were material. His marriage with the daughter of Davidson is no proof that he had any knowledge of any conveyance made by him. At all events, the question of notice is for the jury, and if the tenant can prove the notice by competent evidence, he may do it on a new trial.

On the other question the Court gives no opinion, as the counsel for the tenant has relied on the evidence of disseisin, and has not argued the question of estoppel or re-' butter.

Nonsuit taken off and new trial granted,