Merrill v. Burbank

23 Me. 538 | Me. | 1844

The opinion of the Court was drawn up by

Whitman C. J.

The deed, under which the plaintiff claims title to the locus in quo, was made to him by one Chase, who was, at the time, seized in fee, and had a perfect right to make the conveyance. Other persons can have no right to question its efficacy, unless it be upon the ground, that they are creditors of, or bona fide purchasers for a valuable consideration from Chase; or the holders under such creditors or bona fide purchasers. The defendants are not in either of these predicaments. They claim to have entered, and to have done the acts complained of, “ as and for the executors of the last will of Isaac Moore, who had deceased.” It does not appear that the executors of Moore had any authority by his will to enter upon the real estate of which he may have died seized ; and of course could not have imparted any such authority to any one else, unless duly licensed, as by law provided, to make sale thereof; and no such license appears in this case.

There are other serious difficulties to be overcome by the defendants, before they can hope to succeed in their defence. The levy set up was of an undivided portion of a certain parcel of real estate ; and it does not appear, that the debtor was not sole seized of the whole; nor is there any reason assigned, by the officer making the levy, for not setting it off by metes and bounds. The certificate of the appraisers affords clear indications, that the debtor was sole seized of the whole of the parcel, and the return of the officer does the same. Such a levy cannot be upheld. But a still graver objection, as it appears to me, exists to the ground of defence. The levy was made by virtue of an execution in favor of “ Hardy Merrill as he is treasurer of the town of Parsons-field.” The fee in the premises must have vested, if at all, in trust for the inhabitants of that town ; whereupon they, by virtue of the statute of Henry the 8th, for transferring uses into possession, would have become seized thereof, so that Merrill as treasurer, or otherwise, could not have transferred it without special authority from the cestuis que use for the purpose ; and surely a subsequent treasurer, as is attempted to be set up in this case, without any such special authority, could not have conveyed the same.

If it could be urged, that the inhabitants of Parsonsfield were seized by virtue of the levy, still the defendants could not set up title in them, and claim to have entered by their command ; for it would be necessary to show the command as well as the title. Chambers v. Donaldson & al. 11 East, 65. And it could not be shown that they had any such authority to enter.

The. nonsuit, therefore, must be taken off; and, in pursuance of the agreement of the parties, a default must bo entered.