Moore v. Moore

21 Me. 350 | Me. | 1842

The opinion of the Court was drawn up by

Shepley J.

— This is an action of trespass quare clausum to recover damages for removing, on the 13th of May, 1841, a fence from lot No. 14, in the town of Gardiner, containing about five acres. Possession is sufficient to enable the plaintiffs to maintain the action against one, who cannot show a better title. And they are under no necessity of proving, that they have been in possession claiming to own for more than twenty years except against one, who can exhibit a legal title. If the defendant therefore has not exhibited any legal title, and the plaintiffs and those, under whom they claim, have been in the exclusive and adverse possession for several years, it will not be necessary to determine, whether they fully proved such a possession for more than twenty years.

It appears from testimony introduced by the defendant, that Reuben Moore, the father of the defendant and grandfather of the plaintiffs, in 1798 owned lot No. 15, also containing about five acres, and that there was no fence between it and the adjoining lot No. 14; and that one third part of the ten acre lot, comprehending lots No. 14 and 15, was cleared, fenced, and occupied, by him; that he died in the year 1805, being at that time in the occupation of both lots; that he left a widow and several children ; and that the widow continued to occupy till 1808, when for the first time a fence was extended round the whole of lot 14; and that it was cleared in 1810 ; that a suit was brought by the proprietor in 1812, to recover it, without success; and that the son John, the father of the plaintiffs, took care of it. Charles Moore testifies, that John told him in 1822, that Mr. Yaughan said he should bring a new action for the lot unless some one would buy it, and wished him to buy with him; that in 1826 John claimed the lot, and said he had made a bargain witli Mr. Vaughan for it; and that his mother said to John, she should do nothing about the lot, and that she concluded to give it up to John, who occupied it that year. Until this time the testimony in defence would be sufficient, if uncontradicted, to prove that the widow continued to occupy and claim the lot; but it would not show, that any son had obtained by possession any claim even to improvements. And when the whole testimony is examined, there can be no reasonable doubt, that during the year 1826, and subsequently until his death, John occupied the lot and claimed to do so as his own under the contract, which in 1819 he had made with Mr. Vaughan to purchase it of Jeffries, the owner; and that the plaintiffs, as his heirs, continued that occupation until this action was brought.

Had Else, the mother, acquired a title before she undertook to surrender her claims to her son John ? Although a witness makes a general statement, that her husband occupied both lots at the time of his decease, when it is taken in connexion with the other testimony of the defendant, it clearly appears, that there Was no such occupation or act of ownership on more than the small portion first enclosed either by him or his widow, as would give notice of any adverse claim, until the whole was fenced in the year 1808. Until that time the greater part was uncleared, unimproved and unfenced, and there is no proof of any act of ownership upon it. The earliest period, at which a possession open, notorious, exclusive, and adverse, could have commenced on the greater portion of the lot, was during the year 1808. The defence does not distinguish between different portions of lot 14, by attempting to show that the fence removed was from the part fenced and improved before 1808; and the widow could not therefore have acquired a title against the true owner before the year 1826. When she surrendered her claims to her son John, there is no indica-: tion of an intention either on her part or on his, that he should possess it for the benefit of all the heirs of the father. And this act of hers put an end to her disseisin, or transferred it to her son John ; and this she might do without any conveyance in writing. The deed of the 11th of February, 1841, from Else Moore and others to the defendant, could convey no title or interest whatever, for the grantors had nothing to convey, And when John was in possession in 1826, under a contract to purchase of, the owner, there was an end of all claims to hold it adversely either by him or those in possession anterior to him. They had abandoned or transferred their possession, and he had given a contract to purchase and was holding under it. Small v. Proctor, 15 Mass, R. 495. The possession of the plaintiffs, claiming under their father, was sufficient to enable them to maintain the action against the defendant, whether their father’s exclusive possession commenced before 1826 or not,

It is not therefore necessary to examine or decide several points presented in the arguments.

The contract of the 14th December, 1819, made by John Moore with the agent of the owner, was legally admissible in evidence for the purpose of shewing the character of his possession. For this purpose his own acts and declarations, while in possession, may be given in evidence. Shumway v. Holbrook, 1 Pick. 116. And this was a subsisting and valid contract, while he was in possession.

"Exceptions overruled.