12 Me. 127 | Me. | 1835
At a subsequent term of the Court, the opinion was delivered by
Much of the argument, on the part of the plaintiff) turns upon the assumption, that the defendant had no title to the land, she undertook to convey, until after the date of her deed, when she filed in the probate office for the county of Lincoln, in this State, an attested copy of the will of her late husband and of the probate thereof; and when by order of the court of probate for that county, upon her petition, the said attested copy, with the probate, was ordered to be there recorded.
By the statute of 1821, ch. 51, regulating the jurisdiction and proceedings of the court of probate, <§> 17, it is provided, that where the copy of any will, which has been proved and allowed in any probate court in any of the United States, shall be directed to be filed and recorded in any probate court in this State, pursuant to the act, the filing and recording thereof shall be of the same force and effect, as the filing and recording of an original will, proved and allowed in the same court of probate. And
No estate can or ought to intervene between that of the testator, and that of the devisee. And the doctrine is, that a devise vests on the death of the testator, before entry : Coke Lit. 111 a; 4 Kent’s Com. 533. An entry, or something equivalent, where the possession is not vacant, may be necessary to give the devisee actual seisin. Were the law otherwise ; if, upon the probate of the will, the estate did not vest in the devisee, by relation to the death of the testator, he would not, as he unquestionably is, be entitled to the rents and profits in the mean time; and there would be no one, who could bring an action for an injury to the es^ tate, during that period, or who would be entitled to the damages.
The defendant, having authenticated her title in this State, in the form prescribed by law, and that title having relation back to the decease of the testator, it now appears, that when she executed her deed to the plaintiff, she was seised of a life estate at least, with a lawful power to dispose of the fee; so that the plaintiff has, in fact, obtained all the title, contemplated by his
But, if the defendant had no right to convey an indefeasible estate, and if the heirs at law of the testator could have recovered the land, the plaintiff received actual possession, and has never been disturbed by the heirs. Nor did he rely entirely upon the efficacy of the conveyance, without taking .covenants to secure his title, which wore effectual for this purpose ; or which would have entitled him to an adequate equivalent in damages. That which he purchased, was the right and interest, of which the testator died seised. If this was not lawfully conveyed by the defendant, his executrix, the plaintiff could be disturbed by no one, but the heirs at law of the testator. The defendant was his widow and the mother of his children. His heirs then were also her heirs. If the plaintiff was protected against them, his title could not be defeated ; and she expressly warrants the estate against her heirs, and all persons claiming under them. It is true that these heirs, if they inherited the estate from their paternal ancestor, would not be so bound by the warranty, that they might not claim and recover it. But she and her estate would be bound to make good the warranty, and if the covenant was broken by a recovery on the part of the heirs, must have been held liable to answer for the damages. And she had an ample estate, as the plaintiff well knew, for his security. He relied, as he well might, upon her covenants ; and they afforded him an effectual remedy, if it had turned out that there was any defect in her title or authority, in regard to that, which she undertook to convey. In this view of the case, as there is no pretence that any fraud or deception was practised upon the plaintiff, if he was disappointed in his title, his proper remedy should have been upon his covenants. And this was so decided in the case of Joyce v. Ryan, 4 Greenl. 101.
It appears therefore to us to be quite clear from the facts, that the plaintiff has not paid, or secured to pay, the consideration for his purchase, under circumstances, which will enable him to maintain an action of assumpsit to recover it back.
Nonsuit confirmed.