Farrar v. Eastman

| Me. | May 15, 1833

The opinion of the Court was delivered by

Weston

When this cause was before us, prior to the last trial, the authority of John Knox to sell and convey the land of delinquent proprietors, was under consideration ; and it was sustained, for the reasons set forth in the opinion of the Court. 5 Greenl. 345. But upon examining the proprietors’ records, it now appears, that the vote, under which he proceeded, in fact passed only thirteen days before the date of his deed to William Knox; although from an error in the copies, used at the former trial, it was supposed to have passed at an earlier period. It is apparent then, that between these dates, there could not have been time to give forty days’ notice of the sale, in the manner prescribed by the provincial act of 26 George 2, Anc. Charters, 588. With every desire to uphold a transaction so ancient, which on a former occasion was carried as far, as legal principles would warrant, we feel constrained to decide, that the sale and deed of John Knox was not made in conformity with law.

But notwithstanding the failure of the defendant to sustain himself under that deed, several objections are taken by his counsel to the title of the plaintiffs, predicated upon an adverse seizin. The force and effect of these objections depend upon the question, whether an adverse seizin existed, either when Farrar took his deeds from Ballard’s heirs, or when he conveyed to the other plaintiff, Dwclley.

It may admit of question, whether a tenant in common can be disseised by a stranger, claiming his interest only. Reading v. Royster, 2 Salk. 423; Ld. Baymond, 829. In all cases, where there is a concurrent possession, the seizin is in him, who has the title. The possession of the other tenants in common, held for the benefit of all, would seem to defeat any attempt to create an adverse seizin, as against one. But certainly nothing short of an actual occupancy of part of the land held in common, with the claim of the right of the true owner, indicated by a deed from a party pretending title, or other equivalent notice to co-tenants and others, could have this effect.

The doctrine of disseizin, its effect and limitations, is laid down with great precision, in the leading case of the Proprietors of Kennebec Purchase v. Laboree, 2 Greenl. 275. It is there stated, that if a man enters upon a tract of land, under a deed duly registered, although from one having no legal- title, and has a visible occupation of part of it only, the true owner is disseised of the whole tract. This tract must be continuous. The doctrine cannot be extended to detached parcels, of a part of one of which, the party may have actual possession. By no fair construction or intendment, could he be said to be in possession of the other parcels. It is the occupation and improvement, and not the deed alone, which creates the adverse seizin. The party entering by apparent title, and actually occupying part of the land, is deemed to be in possession of the whole tract, to which his deed extends.

The possession and occupation of all those, through or under whom Levi Stearns held, was of other parcels in severalty. With regard to his occupation of the four acres, part of the lot in question, it was proved to have been under no claim of right, but by permission of the proprietors. Of this lot then, when Farrar took his deeds of the heirs of Ballard, there was no adverse seizin.

On the fourth of October, 1819, no one being at that time in possession, claiming adversely, Farrar entered into and took possession of the lot in question, which had been previously conveyed to him by the true owners. Five days afterwards, Stearns caused his deeds of' the same lot, from persons having no legal title thereto, to be registered. There followed no •change of occupancy. He held the four acres before, as tenant at will to the proprietors and their assigns. A tenant or lessee may become a disseisor, at the election of the lessor. But the lessee will not be permitted to disclaim his tenure, and at his own election set up an independent title of his own, commencing by disseizin. He cannot make use of the possession, which he received at the hands of the lessor, as evidence of an adverse title. It does not appear that there was any change of circumstances, up to the tenth of January, 1820, when Farrar conveyed one moiety in common of the premises in dispute to Dwelley, th'e other plaintiff. Upon this view of the facts, there was no legal objection to the effective operation of the deeds, under which the plaintiffs claim. The possession being by construction of law in the true owner, the terms of the deeds, although they contained no covenants, and although the consideration may have been merely nominal, were sufficient to transfer and convey the land.

Judgment on the verdict.