Ross v. Gould, 5 Me. 204

Ross v. Gould

5 Me. 204 | Me. | 1828

Mellen C. J.

delivered the opinion of the Court.

The case presents three questions for consideration,

1. Was the deed, signed by Low and others, as agents for the proprietors of Coxhall, properly admitted in evidence ?

2. Were the instructions given by the presiding judge to the jury correct ?

3. Is the law, on the facts reported, in favor of the tenant ?

With respect to the first question, we would observe that the ground on which our decision is placed renders it unnecessary for us to decide whether the deed was so executed by the agents, as to pass the fee of the estate therein described to Daniel and Joseph Ross. If it was, and if the verdict in favor of the demandant was found under correct and legal instructions from the court, it is perfectly clear that the demandant has a right to retain the verdict 5 but if it was not, still it was admissible to shew the nature and extent of the claim of the grantees under the deed, which was registered in February 1795, the year after its execution. The report states that the judge admitted the deed £ias legal evidence to the jury.” It certainly was such, and therefore the first objection is of no importance,

*210The next inquiry is, whether the instructions were correct as to the onus probandi. On this point the argument of the counsel for the tenant is specious, and has been ingeniously urged, but we are 'perfectly satisfied that it possesses no intrinsic merit. It is a general, if not a universal rule, that the burden of proof rests on him who has the affirmative of a proposition. Hence a plaintiff must prove his declaration; the onus probandi is on him’; but if the defendant admits the facts alleged against him, but pleads and relies on another fact, as a bar to the action, then he must prove this fact; the onus probandi is thrown upon him. In the case at bar the tenant introduced the deed from Daniel Ross to Low, the execution of which was denied by the demandant. The tenant thereby affirmed it to be the demandant’s deed; and of course the burden of proof wras on him. To a certain extent his counsel admits the principle ; but he contends that as soon as. he had offered evidence of the execution, though of a prima facie character, sufficient to authorise him to read it to the jury, he had, by so doing, thrown the onus pro-bandi upon the demandant, to disprove the execution, and satisfy the jury that it was not. his deed. The true answer to this course of reasoning is, that nothing is to be admitted to the jury without the sanction of an oath, unless by consent, express or implied. A promissory note, offered in support of a declaration upon it, may be read to the jury without any preliminary proof, if the defendant consents to it; this is the case of express consent. If the nature of a plea in bar be such as not to deny the genuineness of the contract declared on, as for instance, the plea of general performance, or the plea of seisin at the time of making the covenant alleged, or the plea of payment, or release; these are cases of implied consent; and for the reasons above mentioned the contract declared on may be read to the jury without any proof of execution. But not so when the issue is upon the plea of non est factum ; there must then be some prima facie proof offered, to justify the court in permitting the contract to be read to the jury in evidence, and submitted to their consideration. And the same principle applies if the contract be offered in evidence, and is denied. When it is so admitted, the jury are the proper and constitutional tribunal to decide the question *211whether the contract be genuine, or not. In the examination of the contested fact, the onus probandi may, in the course of a trial, be thrown from one party upon tlm other several times, according as the complexion of the proof may change. But when it is said, as^" was stated by the judge at the trial, that the onus probandi is on the party who offers a paper as a genuine deed under which he claims, the plain sound common sense and legal meaning is, that it has reference to all the evidence in the cause respecting the alleged genuineness of the contested paper ; or, in other words, it means that the party affirming the paper or instrument to be genuine, must furnish to the juiy so much evidence as to leave abalance of proof in favor of the genuineness of the instrument, after making all due allowance for the influence of the proof adduced on the other side to produce a different conviction in the minds of the jury. The application of these plain principles shows, most manifestly, that the ^ instructions of the judge to the jury were perfectly correct.

Having thus disposed of the second objection, we would repeat the observation that we made in considering the first objection, namely, that if the agent’s deed did convey the estate to the grantees, then of course the tenant has no possible ground of defence. But ill considering the third question, we will proceed upon the principle that no legal estate passed by the deed, without giving any opinion on the point. In this view of the subject, Daniel and Joseph Ross must be considered as entering upon the lands desciibed in the deed wrongfully, and by causing the deed under which they claimed to hold, to be registered in February 1795, they are to be considered disseisors of the proprietors, as to those lands, and to have continued such disseisin until the 9th of March 1816, without a question, according to repeated tlecisions of this court. Little v. Megquier 2, Greenl. 276. Robinson v. Swett & al. 3. Greenl. 316, and Proprietors of Kennebec Purchase v. Laboree 2. Greenl. 275, and the cases there cited. But it has been contended that by means of the agreement made between Low and the demandant^ln the 9th of March 1816, the disseisin and all its effects were done away, and the possession of the demanded premises abandoned, or surrendered. U is clear the agreement was not intended as a conveyance by the *212demandant to Low, but only as a preparatory arrangement, and that a deed was contemplated to be given in pursuance of it; but the jury have found that what the tenant relied on as the contemplated deed was not proved to their satisfaction to have been executed by the demandant; and that it was not his deed. The question then is whether there was any voluntary abandonment of the possession by the demandant, doing away the effects of his disseisin of the proprietors. A disseisin cannot be committed by mistake; Gay v. Brown 3. Greenl. 126; because the intention of the possessor to claim adversely is an essential ingredient in a disseisin; and for the same reason mere mistake will not constitute an abandonment of possession; and much less if such arrangements as were made, were the consequence of false representations by a party interested. The report shews that the demandant acted under the influence of the misrepresentations made by Low in relation to the mortgage; he assuring them that in virtue of such mortgage he had the absolute ownership of all the premises mortgaged, though he was willing to yield up a part on the terms proposed. Now the fact was that no estate had become absolute in Low, he never having entered to foreclose the mortgage; and though on the 26th of December 1816, the balance- due on the mortgage was paid by the heirs of Joseph Ross, yet, on that very day, Low declared that all the land was his, when conversing with the demandant. We cannot consider these transactions as amounting to an abandonment of the possession of the premises, of which the tenant can avail himself, to any advantage. The effect of the disseisin then, not being done away, nor the possession of the demandant changed, under circumstances prejudicial to his possessory rights, we have only to compare the possessory titles of the parties; and thé demandatit’s, being the elder, is the better title. We are. all of opinion that there must be

Judgment on the verdict.