Lapish v. Wells

• Decision Date: 01 June 1829
• Court: Maine Supreme Court
• Parties: LAPISH v. WELLS

6 Me. 175

LAPISH v. WELLS

Supreme Judicial Court of Maine, Penobscot

June, 1829

[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

THIS was a writ of entry, in which the demandant counted on his own seisin of a parcel of land in Bangor; and a disseisin by one William McGlathry, under whom the tenant claimed title; and it came before the court upon exceptions taken to the decisions of Weston J. before whom it was tried.

The demandant, at the trial, relied on a deed from the committee for the sale of eastern lands, appointed by the Commonwealth of Massachusetts, dated March 2, 1802; conveying to himself, and Zadock French, and Amasa Stetson, " assignees of James Budge, who settled in Bangor prior to Jan. 1, 1784, the lot No. 11, in Bangor, as it was surveyed by Park Holland, in the year 1801; " and further describing it by metes and bounds, including the demanded premises, and extending to low-water mark.

The tenant adduced a deed from James Budge to William McGlathry, dated April 19, 1798, conveying an acre of land, of which the land defended was a part; bounded " beginning at a stake on the west bank of Penobscot river, near a thorn-bush marked on four sides; running north eleven rods to a stake and stones; thence southerly to a stake and stones, a corner; thence south nine rods to a stake and stones on the same bank of the same river; thence running on the western bank of said river, to high-water mark, sixteen rods to the first mentioned bounds; with all the privileges of water and landing to the same belonging." This deed was recorded May 7, 1798.

He also read a deed from Budge to John Peck, dated March 13, and recorded March 20, 1799, conveying a tract of land in Bangor known by the name of Budge's farm; bounded " beginning on the east corner of Penobscot river; from thence running north one mile, adjoining the land formerly owned by Francis Rogers, deceased; thence west fifty rods on the land belonging to the Commonwealth; thence south to Kenduskeag stream, on the land owned by one Harlow; from thence down the Kenduskeag stream to Penobscot river; and from thence up the said Penobscot river to the place of beginning; meaning to contain one hundred acres; excepting one acre sold to William McGlathry, as by his deed dated April 19, 1798," & c.

He also read a deed of the same land from Peck to Daniel Wilde, dated March 23, and recorded April 2, 1799; and another from Wilde to Zadock French and Robert Lapish, the demandant, dated Nov. 21, and recorded Dec. 15, 1800, conveying an undivided moiety thereof; both deeds containing the same description and exception.

It was further proved by the tenant, that at a legal meeting of the inhabitants of Bangor, holden Dec. 30, 1800, Lapish was chosen to be " their agent to carry in their claims to the government of Massachusetts, and procure deeds for them as settlers in said town; " that in Oct. 1800, the Budge-lot was surveyed by Moses Hodsdon for Lapish; who, while they were making the survey, observed that the value of the lot was much less, by reason of the acre sold to McGlathry; --That McGlathry resided in Frankfort, and was never an inhabitant of Bangor; --and that the acre sold to him, lay in common with the rest of the land at Kenduskeag-point, until a part of it was occupied and fenced, and a house built upon it in 1803, by Luke Wilder, who bought a quarter of the acre of McGlathry in 1802; which was the earliest actual occupancy of any part of the acre.

The tenant also proved by Oliver Leonard Esq. who wrote the deed from Budge to McGlathry, that the latter had sued Budge, and attached his cattle; that Budge employed the witness to procure for him a settlement of their accounts and dealings, which were of long standing; that McGlathry met him, by appointment, at the house of Budge, where each party produced his demands against the other, and a balance was struck of about a hundred dollars, for which McGlathry agreed to receive the acre of land, which was measured and conveyed to him on the same day; that this was a settlement of all demands between them; upon which McGlathry promised to stop the suit; that the witness was the attorney of Budge, and attended the court to which the writ was returnable, and looked for the action, with a view to answer for the defendant, but was unable to find it.

On the part of the tenant was also shown the resolve of March 5, 1801, passed on the petition of the inhabitants of Bangor, and procured by the solicitation of Lapish as their agent, granting lots of one hundred acres each to all who were actual settlers prior to Jan. 1, 1784, on payment of eight dollars and forty five cents; and to all who were actual settlers between that day and Feb. 17, 1798, similar lots, on payment of one hundred dollars each; with the expenses of survey in both cases; and directing a survey to be made and returned to the committee on Eastern lands, on or before Nov. 1, 1801; after which time six months were allowed to the settlers to pay for their lands.

Under this resolve a survey was made by Park Holland, and returned Nov. 30, 1801; in which he certified that he had laid out, by metes and bounds, " to Robert Lapish and others, assignees of James Budge," one hundred acres of land in Bangor, being the lot No. 11, on his plan, bounded " beginning at a stump with stones about it, standing on the bank of the river, being the southwest corner of lot No. 12; and from thence north seven degrees west, sixty rods, to a pine stump marked; thence north, two hundred and thirty one rods, to a stake marked; thence west, fifty seven rods, to a fir tree marked; thence south, about two hundred and twenty-seven rods, to a stake standing in the county road, one rod east of an oak stump in said road; thence west, four rods, to the stream; thence on said stream, on the bank thereof, and on the bank of the Penobscot river, to the first bounds."

It also appeared that a dispute respecting the bounds of their adjoining lots had arisen between Lapish and one Harlow; which had been referred to the decision of arbitrators; whose award, dated Jan. 14, 1802, set forth the boundaries of Lapish's lot, describing it as containing one hundred acres, " except one acre sold to Wm. McGlathry," and it was proved that Lapish, though requested, did not produce any title-deeds to the referees; alleging that they were lost or mislaid; and that copies of them were afterwards obtained from the record and exhibited by Harlow.

It was further proved, in the defence, that the acre was called " the McGlathry acre" in 1801; that in February of that year Lapish offered McGlathry eight hundred dollars for it; that in 1805 he said he did not pretend to claim it; that in the same year he and Amasa Stetson, Esq. who owned half the Budge-lot, said to Wilder that their deed covered the acre as well as the rest of the lot, and that they did not see why they could not hold that also; but on Wilder's replying that it was not right to take away the land, Mr. Stetson answered, in presence of Lapish, that though their deed covered that lot, yet they had no moral right to it. Stetson and Lapish, having previously caused Kenduskeag point to be surveyed into streets and lots, which they had extended across the acre without reference to its lines, asked Wilder if he intended to conform to their plan of the streets and lots; to which he replied in the affirmative. And a part of his lot extending a few feet across one of their streets, they wished him to sell them that strip; to which he assented, for an agreed price; and had no doubt he gave them a deed of conveyance. Wilder also testified that the owners of the land at the point were very desirous that people should build and occupy there; that before he purchased, he told Lapish he thought he should buy of McGlathry; and that when he was laying down the sills of his house, Lapish pointed out the place which would conform to their plan of the streets, assisted at the raising of the frame, and permitted the people at work under him, as surveyor of highways, to leave their work and assist also.

On this evidence the tenant contended that the deed under which the demandant claimed the acre, and so far as it purported to include it, was obtained from the committee by fraud, and was therefore void, as to that parcel.

The demandant, to rebut this evidence, read copies of certain documents from the land-office; from which it appeared that the existence of McGlathry's claim, and of the exception of it in the deeds of the Budge-lot, must have been known to the committee at the time of executing the deed of March 2, 1802; those deeds, with other papers relating to some disputes respecting the bounds of the lot, having been laid by them before the late Chief Justice Parsons, then at the bar, for his advice whether the demandant and his associates were entitled to a deed as the representatives of Budge; which he answered in the affirmative. The effect of this evidence was denied by the tenant, who contended that it ought to be rejected.

Two resolves, passed June 25, 1789, were also read, restricting the term " settler" to one who made a separate improvement on his lot, fitted for mowing, pasturage or tillage, with an intent to abide and remain thereon; and was resident on such lot, by himself or some other person under him, during the period mentioned in the resolves. Also, the resolve of Feb. 23, 1798, directing the resurvey of the Waldo claim; and the resolve of Feb. 5, 1800, on the report of Thomas Davis, surveyor; to show that the persons to be quieted in their possessions in Bangor, were none but the actual residents mentioned in the preceding resolves.

The demandant...