Little v. Libby

• Citation: 2 Me. 242
• Parties: LITTLE v. LIBBY
• Decision Date: 01 May 1823
• Court: Supreme Judicial Court of Maine (US)

2 Me. 242

LITTLE v. LIBBY

Supreme Judicial Court of Maine, Cumberland

May, 1823

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

THIS was an action of trespass quare clausum fregit, and was tried upon the general issue. The locus in quo contained thirty-five acres, as to a small part of which the defendant pleaded that it was his own soil and freehold, but no question of law arose upon this part of the case. The whole lot, of which the locus in quo was a part, contained originally one hundred and thirty-five acres.

The plaintiff proved the act alleged as a trespass; and that the whole lot, in the year 1780 was regularly conveyed to Moses Little, whose son and heir he was; --that the father made his will, which was duly approved June 4, 1798 whereby he devised this lot, with other lands, to the plaintiff.

The defendant proved that about thirty-seven years ago he caused the whole lot to be run out, and the lines and corners marked; --that about a year after, he made a fence round the lot, and removed his family upon it; --that he had dwelt there ever since, and had kept up and repaired the surrounding fences in the same manner as farmers generally do; --cultivating and improving a part, and claiming the whole.

To rebut this testimony, the plaintiff proved that in the year 1804 the defendant tendered to him the sum at which the whole lot had been appraised by commissioners, appointed for that purpose, among others, by the Commonwealth; --that in October 1809 the defendant purchased of the plaintiff one hundred acres of the lot, including that end on which he dwelt and had made his principal improvements; --that he received a deed of it, and had it surveyed by two successive surveyors to his entire satisfaction. The plaintiff also proved by a witness that they both went to the defendant's house in 1808, being then on the business of examining the plaintiff's lands generally, in that town; --that on this occasion the defendant expressed his wish to purchase of the plaintiff the 100 acres above mentioned; --that the defendant a short time after, on several occasions, said that he wished to purchase the residue of the lot; --that six or seven years ago he repeated the wish; --that three years ago he said he did not own the land; --that on another occasion the witness, who was agent for the plaintiff, called on the defendant for rent, which he did not then agree to pay, but said it would do no harm to the plaintiff for him, the defendant, to improve the land; --that about eighteen months since, the witness told the defendant that he had heard he intended to hold the land by possession, which the defendant distinctly disavowed, declaring that he had no such intention; --and that in 1808 and 1816 the defendant made similar declarations of his wish to purchase the land in dispute in this action, as soon as he should be able so to do.

Upon this evidence the Judge who presided at the trial instructed the jury that the proof offered by the defendant seemed to establish the defence, by exhibiting those facts which have been considered as satisfactory evidence of a disseisin, if not controlled or explained by other testimony; and that, of course, it was necessary for them to inquire and decide whether the facts proved on the part of the plaintiff, did disprove or control the evidence exhibited on the other side.

He then informed them that to constitute a disseisin, the possession of the occupant must be notorious, exclusive, and adverse to the title of the true owner; --that the intention of the possession therefore was a subject of inquiry; --that if the possessor of land hold under the true owner, or in submission to his title, it would not be a disseizin; --that they must decide, from the facts proved, whether the defendant thus held possession adverse to the title of the plaintiff, or of Moses Little, or otherwise; and that they might gather his intention from all his conduct and declarations which had been proved; --that as he had purchased the 100 acres, and had repeatedly expressed his wish to purchase the 35 acres now in dispute, and disavowed all intention to hold or claim the lands by possession, they were at liberty from these facts to draw their own conclusions as to his intention in entering upon and occupying the lands in question; --that if they should believe that Moses Little was disseised at the time of making his will, then nothing passed to the plaintiff by the will, but as son and heir he took the land by descent; and if he had entered into the land so descended, and become legally possessed of it, then he might maintain this action; --that if at the time the plaintiff went to the defendant's house in 1808, the defendant had held the land by disseisin for twenty years next preceding, then he had a right to keep the plaintiff out, and to forbid his entry into and possession of the land; but that the defendant might, if he were inclined, give up the possession, and permit the plaintiff to enter and become possessed; --and that if they should be satisfied, from all the facts, that the defendant had admitted the right and title of the plaintiff, and voluntarily yielded up any possessory title of his own, then the possession of the plaintiff was sufficient to maintain this action.

Under these instructions the jury returned a verdict for the plaintiff; and the foreman, being interrogated by the Judge, said that the jury were of opinion that neither the testator nor the plaintiff had been disseised by the defendant. The questions of law arising upon the facts in this case as reported by the Judge, were reserved, at the request of the defendant, for the consideration of the whole Court.

Judgment on the verdict.

Orr and Fessenden, for the defendant, now contended that, upon the facts reported, the verdict ought to have been for the defendant. 1. There was no entry of the testator or of the plaintiff within twenty years after the first entry of the defendant; and so the plaintiff's right of entry was gone, and he was driven to his possessory action. The parol evidence of the defendant's declarations was inadmissible, as tending to defeat a title acquired to lands and therefore contrary to the statute of frauds. It was enough that the defendant had the open and visible possession more than twenty years, which gave him an interest in the lands,--no matter whether defeasible or not,--and which could not be controled or defeated by mere parol. The tender in 1804 could have no effect, being at best but an offer of compromise. Jackson v. Cary, 16 Johns. 302. Atkyns v. Horde, 1 Burr. 119. Fisher v. Prosser, Cowp. 217. Shaw v. Barber, Cro. El. 830.--2. Nothing passed to the plaintiff by the devise, so as to enable him to maintain an action without entry; the ancestor not being seised. Wells v. Prince, 4 Mass. 64--67. Had the testator or the plaintiff conveyed the land to a stranger, the grantee must have brought a writ of entry in the name of his grantor.--3. If the defendant did not hold adverse to the plaintiff, he must be considered as his tenant at will; --in which case trespass will not lie till after half a year's notice to quit. A tenancy at will is to be treated as a tenancy from year to year; and the strongest case...