Johnson v. Merithew

• Decision Date: 28 January 1888
• Parties: JOHNSON et al. v. MERITHEW.
• Court: Maine Supreme Court

13 A. 132

80 Me. 111

JOHNSON et al.

v. MERITHEW.¹

Supreme Judicial Court of Maine.

January 28, 1888.

On report from supreme judicial court, Waldo county.

Real action. Plea, nul disseizin. The opinion states the facts.

Thompson & Dunton, for plaintiffs. Wm. H. Fogler, for defendant.

HASKELL, J. Writ of entry. Plea, nul disseizin. Both parties claim title under Margaret P. Nickerson. The tenant claims that Margaret conveyed the premises to her son, Aaron W. Nickerson, in 1875; but demandants say that such deed is void for fraud, and inoperative for want of her capacity to make the grant, and for want of delivery. Upon this issue, the tenant objects to the competency of Mrs. Heath, one of the demandants, because she claims to have inherited a share of the property as heir to her mother, Margaret P. Nickerson. This objection is not well taken, for Mrs. Heath demands in her own right that which she inherited from her mother, and is not made a party as "heir of a deceased party." Rev. St. c. 82, § 98; Higgins v. Butler, 78 Me. 520, 7 Atl. Rep. 276. It appears that in January, 1875, while on a visit to her daughter, Mrs. Heath, in Boston, Mrs. Margaret P. Nickerson was stricken with paralysis or some kindred malady, that prostrated her bodily, and confused and unsettled her mind; that in the following March, being somewhat restored, she was taken to her home in Belfast, where she and her husband resided with their son, Aaron W. Nickerson, until her death in the following October; that ever after her illness in January she at times could not recognize her children and friends, and persisted in calling one of the daughters Aaron. An office copy of a deed of the demanded premises from Margaret P. to her son, Aaron W., dated and recorded April 15, 1875, is set up as evidence of a conveyance of the property to him. The original is not produced, nor is any reason given for withholding it; nor is the subscribing witness who took the acknowledgment of the deed as a magistrate called to testify. A mortgage of the same property is also in evidence, dated the same day, and recorded December 21, 1875, after the death of Margaret P., in the preceding October, from Aaron W. to her husband, Aaron, conditioned to secure the payment of $1,200 in installments, the last falling due in four years, and a discharge of the same is shown by the record, August 26, 1876, but no other evidence is adduced upon that subject. Prom a careful consideration of all the evidence, without reviewing it in detail, the court is of opinion that the supposed deed from Margaret P. Nickerson to her son, Aaron W., did not operate as a conveyance of the property to him. It has become a recognized rule in this court that in actions at law, when the parties submit questions of fact to the determination of the law court, they must be content with a decision of them without a review of the testimony in the opinion and reasons stated in detail. Margaret P. Nickerson died in October, 1875, seized of the demanded premises, leaving three children, the demandants and Aaron W., to whom the same descended in undivided shares of one-third each, so that the demandants became seized of two undivided thirds thereof. The other one-third descended to Aaron W., who, accompanied by his wife and three children, all under 10 years of age, sailed February 3, 1880, from Troon, Scotland, in command of a vessel loaded with coal for Havana, none of whom have since been heard from. His father, Aaron, died September 6, 1886, having quitclaimed all his interest in the demanded premises to the tenant, September 11, 1880; so that if Aaron W. died before that date, leaving no children surviving him, his one-third share in the same descended to his father, and passed under the latter's deed to the tenant; but, if Aaron W. survived that date, then nothing passed by the father's quitclaim deed to the tenant, (Pike v. Galvin, 29 Me. 183; Crocker v. Pierce, 31 Me. 177; Coe v. Persons Unknown, 43 Me. 432; Walker v. Lincoln, 45 Me. 67; Harriman v. Gray, 49 Me. 537; Read v. Fogg, 60 Me. 479; Powers v. Patten, 71 Me. 583;) and the demandants inherited from him two-thirds of his one-third in the demanded premises, making their interest in the same eight-ninths in...