Haslam v. Jordan

• Decision Date: 02 March 1908
• Citation: 104 Me. 49,70 A. 1066
• Parties: HASLAM v. JORDAN et al. (two cases).
• Court: Maine Supreme Court

70 A. 1066

104 Me. 49

HASLAM

v. JORDAN et al. (two cases).

Supreme Judicial Court of Maine.

March 2, 1908.

(Official.)

Exceptions from Supreme Judicial Court, Hancock County, at Law.

Action by Washington Haslam against W. B. Jordan and by the same plaintiff against Clarinda M. Jordan and others. Findings for plaintiff in each action, and defendants except. Exceptions overruled.

Two real actions, one against the administrator of the estate of Oilman Jordan and the other against the heirs of the said Oilman Jordan, brought for the recovery of certain land. Both actions were referred with the right to except regarding matters of law.

The referee found for the plaintiff in each action, and with his report filed a rescript presenting the questions of law reserved by the defendants. The material parts of the rescript appear in the opinion.

When the report of the referee was offered, the same against the objections of the defendants was accepted. The defendants then took exceptions to the order accepting the report.

So much of the rescript filed by the referee as does not appear in the opinion is as follows:

"Both parties derive title from Albion S. Jellison. The record title of plaintiffs is as follows:

"(1) Albion S. Jellison to A. F. Burnham by deed of mortgage dated October 21, 1876, recorded October 23, 1876.

"(2) Albion S. Jellison to A. F. Burnham by deed of quitclaim dated December 20, 1876, recorded December 23, 1876.

"(3) A. F. Burnham to Eliza I. Jordan by deed of quitclaim dated August 9, 1879, recorded August 11, 1879.

"(4) Eliza I. Jordan to Albion S. Jellison by deed of quitclaim dated August 9, 1879, recorded August 11, 1879.

"(5) Albion S. Jellison back to Eliza I. Jordan by deed of warranty dated August 9, 1879, recorded August 11, 1879.

"(6) Eliza I. Jordan to Charles E. Dunham by deed of mortgage dated August 9, 1879, recorded August 11, 1879. This mortgage was later discharged.

"(7) Eliza I. Jordan to S. B. Giles by warranty deed from June 27, 1885, recorded August 7, 1885.

"(8) S. B. Giles to Wellington Haslam, plaintiff, by deed dated July 17, 1891, recorded September 14, 18!) 1.

"The defendants' record title is as follows:

"(1) Albion S. Jellison to Oilman Jordan by mortgage deed of warranty dated August 1, 1877, recorded August 2, 1877.

"(2) Gilman Jordan to defendants, heirs and administratrix by descent."

Memorandum: The justice ruling in these cases at nisi prius did not sit during the argument thereof at the law court, being disqualified under the provisions of Rev. St. c. 79, § 42.

Argued before WIIITFHOUSE, STROUT, SPEAR, and CORNISH, JJ.

John A. Peters, for plaintiff.

Oscar F. Fellows, for defendants.

SPEAR, J. These cases are both real actions, which were referred "with leave to except regarding matters of law." The report of the referee, presenting the exceptions taken at the trial, was offered against objection and ordered to be accepted. To this order the defendant excepted. Both actions are for the recovery of the same parcel of land, both parties deriving their title from the same grantor. The record title of the plaintiff is in a direct line through mesne conveyances from Albion S. Jellison. The defendant's record title is from Albion S. Jellison to Oilman Jordan by mortgage deed of warranty daled August 1, 1877, recorded August 2, 1877, and from Gilman Jordan to defendants' heirs and administratrix by descent. It appears that Albion S. Jellison on August 1, 1877, had no title in the premises conveyed to Gilman Jordan. The referee rendered judgment for the plaintiff in each ease, and with his report filed the following rescript presenting the questions of law reserved by the defendants: "It is to be noted that at the date of the deed Albion S. Jellison to Gilman Jordan (the ancestor of the defendants) on August 1, 1877, the grantor, Albion S. Jellison, had no title, he having previously conveyed the land to A. F. Burnham by deed dated December 26, 1876. It follows that at the time no title passed by this deed to the defendant's ancestor, Oilman Jordan.

"It is to be further noted, however, that subsequent to his conveyance to Gilman Jordan by warranty deed of mortgage dated August 1, 1877, Albion S. Jellison, the grantor in that deed, received from Eliza I. Jordan, the then owner, a deed of quitclaim dated August 9, 1879. No. 4 in plaintiff's chain of title.

"The defendants claim that this after-acquired title in Albion S. Jellison at once passed to their ancestor, Gilman Jordan, under the familiar rule that an after-acquired title by a grantor in a warranty deed inures to his grantee by way of estoppel, and to save circuity of action.

"The plaintiff claims that the rule does not apply under the facts of this case.

"Against the objection of the defendants, I received the oral testimony of Albion S. Jellison (under whom defendants claim) to the following effect: The deed to him from Eliza I. Jordan dated August 9, 1879, was prepared and executed in the office of A. F. Rurnham, an attorney. At the same time the deed back from him to Eliza I. Jordan (deed No. 5 in plaintiff's chain of title) was also prepared and executed by him. Also at the same time the mortgage deed from Eliza I. Jordan to Chas. E. Dunham was prepared and executed. He, Albion S. Jellison, paid nothing for the conveyance to him from Eliza I. Jordan, and he received nothing for his conveyance back to her.

"Apart from the testimony of Albion S. Jellison I find the three deeds bear the same date, were recorded the same day, and were filed for record at the same hour and minute, viz., August 11, 1879, at 5:15 p. m.

"I am satisfied that the conveyance by Eliza I. Jordan to Albion S. Jellison, which the defendants claim operated to vest the title in Jellison's prior grantee Gilman Jordan, was made to him merely in trust to reconvey to Eliza I. Jordan, which trust he immediately executed. He did not take any beneficial interest under the conveyance to him, and none passed to his prior grantee Gilman Jordan. I do not think the rule relied upon by the defendants governs this case. If any title passed to Albion S. Jellison, it was a naked legal title only, which he could have been compelled in equity to release to Eliza I. Jordan, the beneficiary, or to her grantees.

"As referee, and under Rev. St. c. 84, § 21, I exercise the power of an equity court, and award judgment in both cases for the plaintiff. Since, however, in my opinion the question of title could have been fully determined in one suit, I award costs in one suit only."

There is no controversy, nor could there be any, with respect to the facts found by the referee, but the defendants contend that in the state of the pleadings governing the trial of the case before the referee the oral testimony of Albion S. Jellison was inadmissible, and...