Dugan v. Thomas

• Citation: 9 A. 354,79 Me. 221
• Parties: DUGAN v. THOMAS and another.
• Decision Date: 03 March 1887
• Court: Supreme Judicial Court of Maine (US)

9 A. 354

79 Me. 221

DUGAN

v. THOMAS and another.¹

Supreme Judicial Court of Maine.

March 3, 1887.

On motion and exceptions by plaintiff from supreme judicial court, Piscataquis county.

Real action. The opinion states the facts.

J. B. Peaks and C. A. Everett, for plaintiff.

Ephraim Flint, (Josiah Crosby, with him,) for defendant.

PETERS, C. J. This is a real action between a son and father, another defendant being coupled with the father, where the question involved the right of possessing a homestead which the father conveyed by a conditional deed to the son to secure a life support. The son claims that he has by his deed a right to the possession, and the father claims that the right which the son had has been forfeited for condition broken.

An exception is taken that the judge said to the jury that the burden to show forfeiture was on the plaintiff, (the son,) when he meant to say defendant instead of plaintiff. It is too late for the plaintiff to urge an objection. He should have called for a correction at the moment, or before the jury retired. It must have been understood to be an inadvertence. The judge was describing the duties imposed upon the plaintiff, and accidentally said, "The burden is upon the plaintiff [meaning the defendant] to show that he has failed to do it." No one could suppose the plaintiff was required to show his own default. Besides, the judge afterwards said that the burden was on the defendant, and such must have been the drift of the whole charge.

An objection is urged, upon the exceptions and motion, that a sufficient reentry was not effected by the defendant, because a witness called to observe the act did not know the purpose of it. But his presence was not at all necessary, The plaintiff moved away from the premises, virtually abandoning them, and the defendant's agent took repossession for condition broken. The grantor took possession of the farm, and held it until his conveyance to the other defendant. The evidence upon that point is plenary.

The deed from father to son contains a clause providing that, if a controversy arise, "the parties, or either of them, may submit" the matter to arbitration; the "arbiter to be mutually agreed upon." The judge instructed the jury that this would not bar the defendant from setting up forfeiture unless the plaintiff asked for a reference, and was refused. The plaintiff cannot justly complain of a ruling more favorable to himself than he was entitled to. If the defendant...