Fox v. Widgery

4 Me. 214 | Me. | 1826

The opinion of the court was read at the following November term, as drawn up by

Weston J.

The respondent claims to be sole seised of the premises, whereof partition is prayed. It appears that in 1808, Woodbury Storer w'as in possession of the premises, claiming, and being supposed, to be the owner of the w'hole. In that year, William Widgery, having obtained judgment against the said Storer, duly levied an execution, which had issued thereon, upon the whole tract. He continued to hold under this levy as long as he lived; and by his last will devised it to the respondent, who, upon the decease of Widgery the elder, entered upon the premises, and has ever since been in possession of the same. It further appears that, during this period, and before, the right to the proportion claimed by the petitioners, was in the heirs of Benjamin Titcomb, who, in August 1821, conveyed the same by deed to the petitioners ; if by law it was competent for them so to do.

By the levy in 1898, Widgery, the elder, became seised of the whole ; and that, not in the character of a disseisor of a part, but by apparent right. He thereby had all the title, which Storer could have given him by deed. Storer being in actual possession, and claiming the whole, and being the reputed owner thereof, although he might be a disseisor of part; yet his grantee, coming in innocently, would acquire a seisin, which, though defeasible, would be regarded as lawful. Even if beheld as a disseisor, until the disseisin was purged, the party' having the right could not pass his interest to a third person ; still less could he do so, while the lawful seisin was in another. Unless therefore .the sole seisin, which Widgery acquired by the levy, had been waived and abandoned by him, nothing passed 'by the deed under which the petitioners claim ; the right only, not the seisin, remaining in the heirs of Benjamin Titcomb'.

It is contended that the release, given by the heirs of Titcomb to Widgery, in 1815, purged the disseisin; and that he thenceforward held under thpir title, and ought not to be permitted to deny it. A disseisin may be purged by entry, by judgment of law, by abandonment of the possession on the part of the disseisor, or by his consenting to hold under the disseisee. If it was done in this case, it must have been by the last mode. If the disseisor take a lease from the disseisee, he then holds under him ; and will not be permitted to dispute the title of his lessor. But if he take a release of all his interest, no relations arise between them by which the one is placed in subordination to the other. The releasor has Ho further interest in the title ; nor is the releasee under any obligation to defend it; or to abstain from any act inconsistent with it. He is not estopped by the release ; for it is not his deed. The grantee may be permitted to show that his grantor was not seised; which is uniformly done in actions brought on the covenant of seisin.

In the case of Blight’s lessee ¶. Rochester, 7 Wheat. 547, cited in the argument, Marshall C. J. in delivering the opinion of the court, says that the lessee, “ cannot be allowed to controvert the title of the lessor, without disparaging his own; andhe'cannot set up the title of another, without violating that contract, by which he obtained and holds possession, and breaking that faith which he has pledged, and the obligation of which is still continuing, and in full operation.”' After adverting to the policy of the times in which this doctrine originated, and tracing it back to the feudal tenures, he adds, “ The propriety of applying the doctrines be - tween lessor and lessee to a vendor and vendee may well be doubt - ed. The vendee acquires the property for himself, and his faith is not pledged to maintain the title of the vendor. The rights of the vendor are intended to be extinguished by the sale, and he has no continuing interest in the maintenance of his title, unless he should be called upon in consequence of some covenant or warranty in his deed. The property having become, by the sale, the property of the,vendee, he has a right to fortify that title by the purchase of any other, wshich may protect him in the quiet enjoyment of the premises. No principle of morality restrains him from doing this; nor is the letter or spirit of the contract violated hy it.”

The party in possession may lawfully purchase in any title, real or pretended. It is for the public good that it should be so The law favors all acts, which go to secure men in the quiet enjoyment of their estates and possessions. To this end also it fixes periods, beyond which the title of the possessor cannot be disputed. The purchase of an adversary claim therefore, -although it may strengthen, ought never to have the effect to impair, the title of the possessor. If it were otherwise, he would often be deterred from purchasing his peace, and constrained, at perhaps greater expense and sacrifice, to defend at law, for fear of having his own title tainted and infected hy the defects of that which he might, to avoid the vexation of a lawsuit, he disposed to purchase, if he could do it with safety.

In the case before us no consideration having been paid for the right passed by the release, it was treated as of little or no value. It could not have been in the contemplation of Widgery that, by taking it, instead of continuing to be seised of the whole of the premises, as he was before, he thereaflerwards was seised only of a part in common and undivided. It was plainly a measure of precaution, from which he might hope to derive a benefit,., hut which could not have been intended by him as a waiver or abandonment of any of his former rights. At any rate, the question whether it was in fact, or was intended to be, a waiver or abandonment of these rights, was one proper for the consideration of the jury, and'which, as such, should have been submitted to their decision; it being a question of intention. In the numerous causes which have come before the court, where the inquiry has been whether a possession of lands was of such a character as to amount to a disseisin of the true owner ; or whether an actual disseisin had been purged or waived by the subsequent conduct, or confessions, or declarations of the disseisor, the subject of inquiry has been submitted as a matter of fact to the jury, for their determination, in this respect the case at bar differs from that of Little v. Libby, cited in the argument, and many others which have since been tried, where no question of law has been reserved on the point. In the case before us, the judge decided the question himself, instead of leaving it to the jury. We are therefore of opinion that the verdict must be set aside and a New trial granted.