71 Me. 24 | Me. | 1880
This is a writ of entry, alleging that Joshua Eobinson, senior, the plaintiff’s intestate, within twenty years last past, was seized of about twenty acres of land in Auburn, in fee and in mortgage, and that the defendant has thereof disseized him.
The plaintiff introduces the mortgage under which he claims as administrator, dated April 14, and recorded April 23, 1866.
Besides the general issue, the defendant, in a brief statement, pleads title in fee in himself and offers in evidence a deed of warranty from Joshua Eobinson, senior, dated March 28, and recorded April 4, 1877.
The deed and mortgage are correct in form, and their delivery is not denied.
The plaintiff attacks the warranty deed to the defendant on the ground of fraud, and for the purpose of defeating its operation as a later deed, discharging the mortgage, offers the following testimony: — -"That, on or about March 26, 1877, the defendant applied to a scrivener to go to his house to make a
It would certainly be going very far to hold that here is evidence of fraud, to defeat a deed. It would be to give an undue weight to the circumstances disclosed, and to treat a suspicion as proof. The testimony offered does not contain a single statement of the son to the father. Whether there had been a conversation between them on this subject, and what was its tenor, if one occurred, are questions to which there is no reply, except by inference. The only remark of the father, which appears, is the direction to the scrivener to write a new deed, which he wanted to give to the defendant, because the old deed was good for nothing. This old deed is not produced, nor its contents proved, and whether it was in fact good or not, we only know from the opinion of the scrivener; — unless we are to assume its validity, from the fact that the only complaint which the demandant offered to prove on the part of the defendant in regard to it was the absence of a stamp.
To treat the deed as fraudulently procured, upon this evidence, would be to act upon a suspicion, without proof.
Judgment for the defendant.