Brookings v. Woodin

• Decision Date: 20 December 1882
• Citation: 74 Me. 222
• Parties: WARREN BROOKINGS v. GEORGE WOODIN.
• Court: Maine Supreme Court

74 Me. 222

WARREN BROOKINGS v. GEORGE WOODIN.

Supreme Judicial Court of Maine.

December 20, 1882

ON EXCEPTIONS and motion to set aside the verdict.

Trespass. The writ was dated June 11, 1879. The verdict of the jury was for the plaintiff for four hundred four dollars and seventeen cents.

The opinion states the facts.

W Gilbert, for the plaintiff.

Henry Tallman, for the defendant.

The plaintiff has been disseized, and a disseizee cannot maintain trespass for a wrong done after the disseizin and before re-entry. Murray v. Fitchburg R. R. Co. 130 Mass 99.

In the case of Kennebeck Purchase v. Call, 1 Mass. 487, it is said that even nominal damages cannot be recovered against a person whose possession is open, notorious and exclusive, in an action of trespass. See Brown v. Ware, 25 Me. 411.

In this case, the possession of this defendant was open, notorious and exclusive; and more than that the only claim of the plaintiff to the property is by possession, and when he lost that, there was and is no foundation to rest an action on.

APPLETON C. J.

This is an action of trespass, for breaking and entering the plaintiff's close, and tearing down his dwelling house. The destruction of the house by the defendant is admitted.

The case comes before us on exceptions and a motion for a new trial.

The plaintiff produces no title deed, but proves a continued possession of the premises for about seventeen years. Possession shows a prima facie title. It is enough against one having none. It is good as to every body but the legal owner.

The defendant claims under a deed from one having tax titles to the premises, by whom the possession of the same was delivered to him, by virtue of an agreement with the plaintiff, and with his consent.

In both the deeds, under which the defendant claims title, it appears that the whole lot was sold, and it nowhere appears that it was necessary to sell the whole, to pay the tax for which the land was sold. The highest bidder, means one who will pay the tax for the least quantity of land. The necessity of the sale of the whole is nowhere shown. The deeds are both void on their face, the sale being illegal. Lovejoy v. Lunt, 48 Me. 377; Allen v. Morse, 72 Me. 502. The jury were so instructed, and properly.

The defendant requested the court to instruct the jury, that " as the plaintiff claimed no title, but only possession by his tenants, if Mr. Wiggin, having a tax title, whether legal or otherwise, entered into possession of the premises, and being so in possession, conveyed the premises for a valuable consideration to the defendant by a quitclaim deed and gave him possession of the premises, directing the tenants to pay rent to him (the defendant,) that the plaintiff cannot recover in this action."

This request was refused, and rightly. If the tax title was void it gave no right to enter. It gave neither seizin nor title to the premises. Wallingford v. Fiske, 24 Me. 387. The holder of the tax title, by entering on the premises, was a trespasser, and so was the defendant, who entered with and under him. They were both trespassers and nothing...