Robison v. Swett

Decision Date01 May 1825
Citation3 Me. 316
PartiesROBISON v. SWETT & AL
CourtMaine Supreme Court

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

THIS was an action of trespass quare clausum fregit, in which the issues were--1. not guilty; --2. that the close was the soil and freehold of Swett one of the defendants; --3. that it was the soil and freehold of Swett and others, of whom the plaintiff was one.

It appeared in evidence that the lots in question, which were in Bridgton, belonged to the original right of Thomas Poor, having been drawn to him in 1767, and confirmed in 1783, to hold in severalty, and that he, by deed dated March 16th, 1768, and recorded May 30, 1811, conveyed the premises to Col. Poor; --that this Col. Poor died in October or November 1804; --that his heirs at law executed a deed March 12, 1810, which was recorded April 21, 1810, conveying the same lots to one Webb and Swett the defendant, under which the defendants justified; --and that they were still wild and uncultivated lands, and were never inclosed within fences.

To maintain the issues on his part, the plaintiff offered in evidence a deed dated March 4, 1784, and recorded four days afterwards, made by Benjamin Kimball, Enoch Perley and James Stevens, styling themselves a committee of the proprietors of Bridgton to make sale of the lands of delinquent proprietors, and conveying to Thomas Robison, father of the plaintiff, whose right the plaintiff held, certain lots in Bridgton, and among them the lots in question. To the admission of this deed the defendants objected, because no authority was shewn in the grantors to execute it; but Preble J. before whom the cause was tried, admitted it to be read to the jury, instructing them that it did not convey the title of Poor, but was evidence of the extent of the plaintiff's claim.

The plaintiff also offered the same Enoch Perley as a witness, who was objected to, on the ground of his liability on the covenants in the above deed; but on his producing a release of that liability from the plaintiff, made since the pendency of this action, he was admitted. Testimony was adduced on behalf of the plaintiff, tending to shew that Robison the father, and after him the plaintiff, had always maintained an exclusive occupancy of the lots, having an agent in their neighborhood to look after them; --that the lots lying near the forks of the road, and being therefore exposed, peculiar care had been taken to protect them from trespasses; --that he had paid all the taxes assessed upon them to the present time; --and that since the year 1805, he had occasionally taken timber from them. He also endeavored to prove that though Poor well knew of the sale of the lots to Robison, and of his claim and exercise of acts of ownership over them, he never did actually interfere, or disturb the possession claimed by Robison under his deed. It appeared, however, that as Poor was once passing to Bethel along the public highway leading over these lots, he asked his agent, then in company, " if that was the land which was or had been his?" This, the defendants contended, was in law an entry on the land. It also appeared that Poor, at some time which was not distinctly ascertained, instructed his agent not to pay any more taxes upon these lots, for he should get them back again; --and the agent said he had paid no taxes on them since 1775. Poor was much dissatisfied, and made great complaints of the manner in which he had been treated respecting his lands; and in 1804, instructed an agent to obtain minutes of the sale of the lands in question, and of others, that he might know the purchasers. It also appeared that Enoch Poor, one of the heirs at law of Col. Poor, after his father's death, came to Bridgton 18 or 20 years ago, and offered to sell these lands, stating that he claimed them, and that the sales were illegal. But no actual entry, or intermeddling with the possession, by either of the Poors or any person in their behalf, was proved, unless the act of Col. Poor in riding along the highway over the lots, as above stated, constituted such entry.

Farther to show to the jury that by those interested adversely to the plaintiff he had always been regarded and treated as in the actual possession and occupancy of the lots in question, the plaintiff offered in evidence an original writ of right, dated June 4, 1810, prosecuted against him by Swett, the defendant, and Webb, for their own benefit, in the name of the heirs at law of Col. Poor, who was therein alleged to have died disseised, and the present plaintiff alleged to be in possession; --(see Poor & al. v. Robison 10 Mass. 131)--also a similar writ dated May 20, 1813.

These writs, though objected to, the Judge admitted to be read for the purpose above stated; each suit, after pending some time in Court, having been abandoned by the demandants.

The plaintiff also offered in evidence an agreement entered into in behalf of said Swett and Webb, in a suit instituted by them against Enoch Poor & al. and filed in the Supreme Judicial Court at November term 1813, in the county of Essex; (see Swett & al. v. Poor & al. 11 Mass. 549,)--in which agreement it is admitted that the present plaintiff was in possession of these lots claiming by an adverse title, at the time of the death of Col. Poor, and at the time of the execution of the aforesaid deed from his heirs at law. This also, though objected to, the Judge allowed to be read as evidence, in the nature of a confession on the part of Swett of the facts therein stated, so far as the present plaintiff was concerned.

Upon this evidence the Judge instructed the jury that the riding along the highway, as Col. Poor was proved to have done, and making the inquiry he did, was not an act which amounted in law to an entry; --that the recording of his deed from Kimball, Perley, and Stevens, by the grantee, was notice to Poor and all others whom it might concern, of the nature and extent of his claim, and that he intended to hold the land, but that it availed nothing by way of passing Poor's title; --that in order that it should avail Robison, it was necessary he should go into actual possession under it, and continue to occupy and hold the lands; --that these lands being wild and uncultivated, the jury were not to expect the same evidence of occupancy which a cultivated farm would present to them; --but that facts and conduct on the part of a person exercising acts of ownership and claiming, adversely, title and possession, would amount in law to possession of the land, and disseisin, if known and acquiesced in by him who has the right; when, if unknown and not acquiesced in by such party, they would not amount to such possession and disseisin, but only to successive trespasses; --that the two writs of right and the agreement were not conclusive evidence, but were proper for the jury to consider as admissions and confessions of Swett, that Col. Poor died disseised, and that Robison was in possession, claiming adversely; --and that if, from the whole evidence, they believed that Robison went into possession under his deed, and had maintained a continued possession, exclusive and uninterrupted; and that however Col. Poor might complain, he never did actually interfere with the possession of the lots; they would find for the plaintiff; --which they accordingly did; and the Judge reserved, for the consideration of the whole Court, the questions of law presented by his ruling upon the evidence, and his instructions to the jury.

Motion for a new trial is not sustained, and judgment entered on the verdict.

Hopkins, for the defendants. As the case finds that the legal seisin of these lands was once in Col. Poor, which was never controverted, it clearly follows, by well settled principles of law, that his heirs and assigns still have the legal seisin of the same land, unless they have been disseised. And this seisin carries with it the possession, unless there has been an adverse possession; --Proprs. Ken. Purchase v. Call 1 Mass. 484,--and it is always presumed to continue, until a disseisin is proved. Same v. Springer 4 Mass. 416.

The question therefore is, whether the facts in the case shew a disseisin of Col. Poor; or such a possession in the plaintiff as would enable him to maintain trespass against him who has the lawful seisin?

The deed from Kimball and others to Robison ought not to have been admitted for either of these purposes, nor for any other purpose whatever; --because 1st. No authority is shewn in the persons styling themselves the proprietors' committee. 2d. Because it appears that the land had been set off to Poor in severalty many years before the assessments; and was not liable to be assessed by the proprietors. Bott v. Perley 11 Mass. 169. 3d. Nor was it competent evidence to shew the extent of Robison's claim, unless it be of a claim accompanied by an actual occupancy, or pedis possessio, an open, notorious, visible, and continued possession, in defiance of the right owner. Little v. Megquier 2 Greenl. 276. 4th. Nor for any other purpose; because, on its face, it appears that the proprietors had no seisin which they could convey; and that the lands, being the private property of a third person, were not liable to taxation.

Neither was that deed legal evidence to shew the nature and extent of Robison's claim. The intent of the statutes of enrolment is to give notice of the alienation of lands, so as to protect bona fide purchasers. The recording of a deed could be but presumptive notice, if the statute had not declared it sufficient. But the deed to Robison discloses, on the face of it, a prior conveyance or grant from the same proprietors to Poor; and places...

To continue reading

Request your trial
11 cases
  • Kramer Service, Inc. v. Wilkins
    • United States
    • Mississippi Supreme Court
    • 20 Febrero 1939
    ...v. State, 113 Ga. 267, 38 S.E. 841; Jones v. State, 63 Ga. 395; Tumlin v. Crawford, 61 Ga. 128; McLeod v. Ginther, 80 Ky. 399; Robinson v. Sweet, 3 Me. 316; Roberts v. Spencer, 123 Mass. 397; Com. v. Roberts, 108 Mass. 296; Seyfer v. Otoe County, 66 Neb. 566, 92 N.W. 756; Swift v. Mass. Mut......
  • Hitt v. Carr
    • United States
    • Indiana Appellate Court
    • 22 Junio 1915
    ...may choose to apply it, that it is difficult to lay down any precise rule adapted to all cases.' And, as said in the early case of Robison v. Swett, 3 Me. 316, 'lands being wild and uncultivated, the jury were not to expect the same evidence of occupancy which a cultivated farm would presen......
  • Field v. Morris
    • United States
    • Arkansas Supreme Court
    • 30 Mayo 1910
    ...47 N.W. 59; 54 Mo. 105; 84 Mo. 352. A defective or void deed constitutes color of title. 10 F. 531; 47 F. 614; 48 Am. Dec. 226; 58 Id. 549; 3 Me. 316; 10 S.E. 991; 5 Vt. 70 Am. Dec. 473; 77 Am. Dec. 586. As to what will constitute color of title, see 148 U.S. 301; 24 Ala. 347; 59 U.S. 50; 1......
  • Worthley v. Burbanks
    • United States
    • Indiana Supreme Court
    • 12 Enero 1897
    ...choose to apply it, that it is difficult to lay down any precise rule, adapted to all cases.” And, as said in the early case of Robison v. Swett, 3 Me. 316, where it was “wild and uncultivated land, the jury were not to expect the same evidence of occupancy which a cultivated farm would pre......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT