Dennett v. Crocker

8 Me. 239 | Me. | 1832

Weston J.

If Stephen Swett, the witness, had received information from a tenant in possession, that he held adverse to his claim, She declarations of such tenant would be evidence of the fact; but it does not appear from whom the information came ; and the witness knew not whether it was true or false. It was mere hearsay, mid properly rejected as such. The objection, made at the trial, to the- admission of the deed to Robison, to show the extent of his claim, is waived by the counsel for the plaintiff.

It is insisted that the agency of John Perley, a witness for the defendants,. was not proved by competent testimony; he having a written power from Thomas Robison, under whom the defendants’ grantors held as.-heirs1. That power however ceased by the death of Robison, after which the witness acted under a parol authority from his heirs. All the facts to which he testified, happened after his, decease, except payment of part.of the taxes; and as to this part-of his testimony,, it was not allowed by the~ruling of the Judge, and must have come out without any special objection, made to this part alone. But proof of the payment of any taxes, by those who claimed the Robison title, it is contended was inadmissible, without the production of the assessments and the collector’s bills. If the due assessment, of these taxes had been material to the issue, which cannot be pretended, the production of the regular evidence of this fact might have been required. The payment itself was matter in pais,. to which the; witness was competent to testify; and there' might have-been no other evidence of the fact. The witness, was not called to prove, nor did he testify, whether the taxes were- rightfully claimed or not of those whom he represented.

The plaintiff,' having failed to show any title whatever, cannot re~eover; whether the defend ants’’title, from all the heirs of Thomas Robison, is made out or not. If the land was his, and they have the interest of part of the heirs,, they had a right' to enter upon the premises, and exercise the acts of ownership, of which the plaintiff complains. The execution of th,e deed, under which the defendants claim, by part of the heirs, being- proved or admitted; it was legally in evidence, and properly read to the jury.

The title of the plaintiff, and not that of the defendants, was the question in issue. Had they been plaintiffs, they would have been required to. make ou.t their title affirmatively, and then some of the objections to the operation and. effect of the deed, under which they hold, might have been properly taken. But as they were involved also in the plaintiff’s title, which depended on disseisin, these objections have been, removed by the verdict of the jury. They have found that the plaintiff had no seisin, by virtue of a possession and improvement. His fences were made to enclose his other land. This point the jury have settled. And while they existed, he repeatedly recognized the Robison title. The Judge was requested to instruct the jury, that what the plaintiff said to .Davis, one of the defendants, about the time of the execution of the deed to them, was, in connexion with the other facts, conclusive evidence of a disseisin. But what their combined effect would be, would depend upon the character and quality of the other facts. Mere declarations do not make a disseisin ; but they may show the nature and character of an actual possession. The declarations of the plaintiff were left to the jury. And we are of opinion that in giving the instructions he did, and in witholding such as were requested, the Judge was warranted by law. All adverse seisin being disproved and negatived, there was no necessity of an entry, on the part of Robison’s heirs, to give actual seisin ; and no impediment to the conveyance of tlroi.r seisin, by their deed, to the defendants.

Judgment on the verdict.