Shaw v. Wise

10 Me. 113 | Me. | 1833

Mellen C. J.

delivered the opinion of the Court.

The only question in this cause, which it is necessary for us to decide, Is, whether the facts disclosed on the report of the Judge, prove the seizin of the demandant on which he has counted. A person who is in possession of a piece of land, though having no other title than his possession, may maintain a writ of entry against any one who enters upon him and ousts him, without any title whatever. But as Shaw does not appear ever to have been in possession of the land in question, he cannot, on the above-mentioned principle of the common law, maintain the present action, even if the tenant has no title. The next question is, whether he can maintain it, in virtue of the right, title and interest which he purchased at auction of the officer, being the estate, right, title and interest which Tripp had, in virtue of Stanley’s bond, to convey the real estate to him on performance of the condition of it. The statute of February 28, 1829, eh. 431, provides “that the estate, right, title and “ interest, which any person has by virtue of a bond or contract “ in writing, to a conveyance of real estate, upon condition to “ be by him performed, whether he be the original obligee or “ assignee of the bond, shall be liable to be thken by attach- “ ment, on mesne process or on executionthe section goes on and provides that when such estate, right, title and interest is seised on execution, it shall be sold in the same manner as a right in equity of redeeming real estate mortgaged, and that the purchaser of such right or title shall have the same right of redeeming as the purchaser of an equity, and the same mode of process to obtain possession; that is, by a bill in equity. Stanley’s bond or obligation to Tripp, was a contract merely personal, and the estate, right, title and interest which Tripp had in virtue of that bond or obligation, was merely a personal right; that is, a right to a conveyance of the land in question, on performance of the condition of the bond or obligation; but the demandant, by his purchase and deed of the officer, acquired no seizin of the land, for Tripp had none. It is perfectly clear that an obligee of such a bond, or contractee in such a contract, cannot, merely as such, maintain a writ of entry against any one, even a stranger; but a mortgagor in possession can maintain such an action ; because, as to all persons, except the mortgagee and those claiming under him, he is considered as seised of the legal estate. The nature of the obligee’s right to conveyance in virtue of such bond or contract, surely is not changed into real estate, because it is to be sold on execution in ■ the same manner as an equity of redemption. Suppose that all yessels were to be sold on execution, as equities of redemption are by law to be sold, they would still remain mere chattels. It is evident that the Legislature viewed the subject in the light in which we have placed it, by having provided a bill in equity as the process by means of which the obligee, or those claiming under him, may compel a specific performance ; that is, a conveyance of a legal title to the owner of such personal contract, on performance of the conditions of the bond or contract. We áre all clearly of opinion that the present action cannot be maintained. A nonsuit must be entered.