Pennington v. Gartley

• Decision Date: 30 June 1912
• Citation: 109 Me. 270,83 A. 701
• Parties: PENNINGTON v. GARTLEY.
• Court: Maine Supreme Court

83 A. 701

109 Me. 270

PENNINGTON

v. GARTLEY.

Supreme Judicial Court of Maine.

June term, 1912.

For other definitions, see Words and Phrases, vol. 5, pp. 4848-4851; vol. 8, p. 7733.]

Report from Supreme Judicial Court, Aroostook County, at Law.

Action by Margaret H. Pennington against Ephrim Gartley. On report. Judgment for plaintiff.

Argued before WHITEHOUSE, C. J., and SPEAR, CORNISH, BIRD, HALEY, and HANSON, JJ.

Shaw & Shaw, of Houlton, for plaintiff.

Doherty & Tompkins of Houlton, for defendant.

CORNISH, J. This is an action of assumpsit, brought on a promissory note for $36, dated July 15, 1910, due in three months, with interest at 8 per cent., and also on the following account annexed: "To use and occupation of 10 acres of land on my farm in Houlton, for season of 1910, same you used with Ulmont H. Hovey, and which you agreed to pay to me, rent being $15 per acre, $150."

No defense is made to the note, and the sole controversy is over the claim for rent. The case is before this court on report.

Two insuperable obstacles prevent recovery for use and occupation.

In the first place, it is the use and occupation of 10 acres on the plaintiff's farm that is sued for; but the evidence shows that the plaintiff was not the owner of the premises in question, either in the season of 1910 or at any other time.

The history of the title as shown by the uncontradicted evidence is somewhat unique and is as follows:

George L. Pennington, the father-in-law of the plaintiff, was the owner of the farm in question up to about 1898 or 1899, when he conveyed it to his son, George A. Pennington, the husband of this plaintiff. The deed was duly delivered to the son and retained by him until his death in 1907, but was never recorded, for reasons well known to the parties, but not appearing in evidence.

Then, according to the plaintiff's statement, "after my husband's death, and his property went through probate, and everything was settled, we decided the farm would be good property for my son, and it was deeded right straight to my son." That deed was given in May, 1910, after the lease in this case was given, and was put on record some time in 1911. This son, whose name is George D. Pennington, is a minor, and the plaintiff is his legal guardian, having been appointed in February, 1908.

George L. Pennington died on June 26, 1911, and the administrators of his estate are James L. and Sarah A. Pennington.

It is clear from the foregoing that the plaintiff has never had any legal title to the premises, except, perhaps, an undivided interest by descent from her husband at his decease. The destruction of the deed, once delivered, could not, of course, destroy the title which had been conveyed; but in any event the legal title during the season of 1910, when the controversy here took place, was either in George L., or the heirs of George A., or George D. It was not in the plaintiff. She was the guardian of George D., but this suit is not brought by her as guardian. Hutchins v. 'Dresser, 26 Me. 76; Dorr v. Davis, 76 Me. 301.

Apparently it was treated by the father-in-law, George L., as being still in himself, because on March 9, 1910, he executed and delivered a written lease of the entire farm of about 250 acres to Ulmont H. Hovey, the son-in-law of the defendant, for one year for a rental of $1,400.

The plaintiff appears nowhere in the transaction, except in some interviews, as will hereafter be seen.

It is difficult to see, therefore, how the plaintiff can recover for the use and occupation of real estate to which she had no title. Porter v. Hooper, 11 Me. 170; Carroll v. Hayward, 124 Mass. 120.

But the plaintiff contends in the second place that, while the legal title may have been in some other party, she was really to have the rents and profits from the farm, and she relies upon an alleged express promise made by the defendant to pay her $150 for the use and occupation of these 10 acres out of the whole tract. This contention is strongly resisted by the defendant, who says that he had made no such contract with the defendant; that his son-in-law, Hovey, took a lease of the entire farm, and he, the defendant occupied these 10 acres by arrangement with the lessee. A careful study of the evidence shows that the plaintiff has not sustained the burden of proof on this question of fact. Not only does the testimony...