Bracket v. Norcross

• Decision Date: 01 September 1820
• Citation: 1 Me. 89
• Parties: BRACKET v. NORCROSS
• Court: Maine Supreme Court

1 Me. 89

BRACKET v. NORCROSS

Supreme Judicial Court of Maine, Counties of Kennebec and Somerset

September, 1820

IN this case, which was a writ of entry, possession was demanded of an undivided moiety of two several tracts of land in the town of Chesterville. At the trial, which was had on the general issue before WILDE J. at October term 1819, the demandant's title was admitted; as was also the tenant's title to the other undivided moiety of the land the two tracts having been granted to the parties about twenty-one years since, to hold in equal moieties, as tenants in common.

It was proved that in May 1808, the demandant authorized one Gorden to demand possession of the premises described in the writ and that he accordingly did at that time make the demand which he has since repeated:--but that the tenant has uniformly refused to admit the demandant to enter on either of the tracts of land, or to suffer Gorden to occupy them in his behalf; and at one time he denied the demandant's title to the land, and has ever since retained the exclusive possession and occupation of it.

The tenant's counsel objected that this evidence was not sufficient proof of an ouster of the demandant; but this objection the Judge overruled.

The tenant claimed allowance for one half of the improvements made by him on these tracts of land, and for one half of the expenses incurred in erecting and repairing the buildings thereon. This claim was resisted by the demandant, on the ground that the tenant could not entitle himself to such allowance under Stat. 1807, chap. 75. because there was no evidence that he ever held the demanded premises previous to the passage of that Statute; --that he had possession of the two tracts of land with the consent of the demandant, the tenant having made the purchase by his request in their names, and that he had a perfect legal right to take possession; but that until May 1808, he never claimed the demandant's moiety, which, until that time, in estimation of law, was held by the demandant.

Intending to reserve this question for the consideration of the whole Court, the Judge admitted the evidence offered on the part of the tenant, and a verdict being found for the demandant, the moiety of the improvements and buildings on the land were accordingly estimated by the jury.

If this evidence was rightly admitted, and the tenant, in the opinion of the Court, should be entitled to allowance for such improvements, then it was agreed that judgment should be entered on the verdict; --otherwise, the verdict was to be set aside, and the tenant be defaulted; unless the Court should be of opinion that the demandant was not entitled to recover upon the point first made.

Judgment on the verdict.

The case was briefly spoken to, before the Reporter entered on the duties of his office, by R. Williams for the demandant and Bond for the tenant.

OPINION

The opinion of the Court was afterwards delivered as follows: by PREBLE, J.

The first question submitted in this case, though not much pressed in the argument, is, whether there was sufficient evidence of actual ouster to enable the demandant to maintain his action.

On adverting to the evidence as reported by the Judge, who presided in the trial, we find, " The agent of the demandant had repeatedly demanded possession" --" the tenant uniformly refused to admit the demandant to enter" --or " to suffer demandant's...