| U.S. Circuit Court for the District of Maine | May 15, 1827
Upon the first question, there does not seem to be any real ground for doubt. Notwithstanding the language of Lord Mansfield, in Taylor v. Horde, 1 Burrows, GO, what constitutes a disseisin is, at least in this country, well settled. I remember to have heard a learned judge (the late Chief Justice Parsons), say, that Lord Mansfield had not gone to the bottom of this matter, and had puzzled himself unnecessarily. This observation attracted my attention at an early period of my professional life, and I have made some researches to ascertain its accuracy. This is not, however, the propel occasion to investigate the subject at large. There is a distinction between disseisins, which are in spite of the owner, and dissei-sins at his election. But the distinction often turns upon other principles than those which have been stated. The owner cannot elect to consider himself disseised, where the act is not of such a nature as, in law, affords a presumption of a disseisin. But where an act is done, which is equivocal, and may be either a trespass or disseisin, according to the intent, there the law will not permit the wrongdoer to qualify his own wrong, and explain it to be a mere trespass, unless the owner elects so to consider it. See the cases of Jerritt v. Weare, 3 Price, 575; Proprietors of Number Six v. M’Farland, 12 Mass. 325.
In the present case the defendant, Nevers (for the other defendants are in no sense tenants in common, but mere servants), entered into the land, after it was divided in 1817, under title, and exercised all the acts of ownership of which it was capable, in its then state. He cut down the grass, and, subsequently, the trees, under a notorious and open claim of right to the entierty, under a conveyance then on record. He did not enter as a tenant in common, though, possessing the title of the eldest son as heir, he was certainly the true and legal owner of one quarter part. The possession, then, being, in the most fa-vourable view to the plaintiffs, vacant, and the land wild, his title, under such circumstances, would without an entry have drawn to him the legal seisin of that part But he made an actual entry into the w hole, claiming the entierty, in fee and of right His acts of ownership were such, as amounted to a dis-seisin of the co-tenants; for he entered as sole owner; his possession was open and notoriously adverse to them; and his acts went to a waste of the estate, and their utter dis-seisin. I take the principle of law to be clear, that where a person enters int.o land under a claim of title thereto By a recorded deed, his entry and possession are referred to such title; and that he is deemed to have a seisin of the land co-extensive with the boundaries stated in his deed, where there is no open adverse possession of any part of the land, so described, in any other person. The seisin of Nevers, so acquired and continued, must be considered as subsisting, until an entry of the other persons, claiming title, interrupted it. No suc-h entry is proved to have been made by the heirs, who conveyed to Farrar before their conveyance to him. Their deeds are therefore inoperative to convey the title, for they were at that time disseised. There can be no legal doubt, that one tenant in common may disseise another. The only difference between that and other cases is, that acts, which, if done by a stranger, would per se be a disseisin, are, in the case of tenancies in common, perceptible of explanation, consistently with the real title. Acts of ownership are not, in tenancies in common, necessarily acts of disseisin. It depends upon the intent, with which they are done, and. their notoriety. • The law will not presume that one tenant in common intends to oust another. The fact must be notorious, and the intent must be established in proof. In the case at the bar, there can be no question of the intent. The title under which Nevers claims, originated under a tax sale in 17S2. It embraced the whole lands belonging to the proprietary right of David Chandler, the father, Although it could not operate as a disseisin of any of the undivided lands, because the seisin of the co-proprietors of those lands was a seisin for all the proprietors; yet it establishes the fact, that Nevers, and those under whom he claims, have always since that period made an assertion of right to the en-tierty. His entry and possession must then be referred to that title. The heirs have never asserted any claim to the lands for fifty years by paying taxes or otherwise; and there is nothing in the case from which the court can presume an entry or seisin by them.
As to the second point, it appears to me plain that the statute meant to give the remedy, which it prescribas, only in cases of acknowledged tenancies in common. It declares, “that if any person, holding any lands in common and undivided, shall cut down &c. any trees &c. on such lands &c. or make any other strip or waste thereon, without first giving notice in writing under his or their hands unto all the persons interested therein, or to their agents &c., forty days beforehand, sot-ting forth that he or they have occasion for, or shall enter upon and improve such lot of lots of land lying in common as aforesaid, he shall forfeit and pay treble damages, to be recovered &c. &c.” The statute is highly penal, and ought not to be construed to embrace cases, which are not fairly within its terms. If it is susceptible of two interpretations, one of which satisfies the terms, and stops at the obvious, mischief provided against, and the
The plaintiffs, on this opinion, being delivered, asked leave to discontinue, which was accordingly granted.