Smith v. Booth Bros. & Hurricane Isle Granite Co.

• Decision Date: 12 November 1914
• Citation: 112 Me. 297,92 A. 103
• Parties: SMITH v. BOOTH BROS. & HURRICANE ISLE GRANITE CO.
• Court: Maine Supreme Court

92 A. 103

112 Me. 297

SMITH

v. BOOTH BROS. & HURRICANE ISLE GRANITE CO.

Supreme Judicial Court of Maine.

Nov. 12, 1914.

[Copyrighted material omitted.]

Exceptions and Motions from Supreme Judicial Court, Knox County, at Law.

Action by Albert W. Smith, administrator, against Booth Bros. & Hurricane Isle Granite Company.Verdict for plaintiff, and defendant excepts and moves for a new trial.Motion and exceptions overruled.

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

A. S. Littlefield, of Rockland, for plaintiff.

C. E. Littlefield and C. W. Littlefield, both of New York City, and Frank H. Ingraham, of Rockland, for defendant.

SAVAGE, C. J. Assumpsit by the administrator of James M. Smith to recover one-fifth of the stumpage for granite alleged to have been taken by the defendant from the quarry and pasture adjoining the quarry owned by the defendant at Long Cove in St. George, Me.The trial resulted in a verdict for the plaintiff, and the case is brought here by the defendant on a general motion for a new trial, a motion for a new trial on the ground of newly discovered evidence, and on numerous exceptions.

The principal issues involved are these: The plaintiff in the first place claims that James M. Smith, his intestate, in whose lifetime the granite was taken by the defendant, had a title by deed to an undivided fifth part of the granite in the premises in question.This is denied by the defendant on two grounds: First, that James M. Smith never had any title; and, secondly, if he ever had title, he had conveyed it to his wife, Annie S. Smith, before the defendant's acts complained of.The plaintiff replies that even if James M. Smith had no valid title by deed, yet he had such a possessory right as would entitle him, or his administrator, to maintain this action against one having no title or right of possession.He says further that the deed of James M. Smith to Annie S. Smith was never delivered to her, and therefore that no title passed.There is also a dispute as to the location of the northern boundary line of the tract on which the quarrying rights are claimed to have belonged to James M. Smith.These are the issues.

We will first consider the contention that long before any granite was taken by it, the plaintiff's intestate conveyed to Annie S. Smith, his wife, whatever interest he had in the granite which is now the subject-matter of dispute.For if the motion should be sustained on that ground, it will not be necessary to consider the case further.If the plaintiff's intestate had conveyed all his title, before the time the granite was taken, the action cannot be maintained.

That a deed to that effect was executed and acknowledged by James M. Smith is not denied.It was dated February 4, 1882.As the defendant set up this deed to defeat the plaintiff's title, it was incumbent on it to show that it became effective by delivery.It is denied that it was ever delivered to the grantee or to any one for her use.Mrs. Smith, the grantee, testified that it was never delivered, and that she never knew of its existence.The jury, by direction, made a special finding, which was to the effect that the deed was never delivered.As will be shown more particularly hereafter, Alvin H. Fogg and Lauretus E. Fogg were tenants in common, each of one-fifth, with James M. Smith, of the unquarried granite.It appears that on February 3 and 4, 1882, the Foggs separately conveyed their interests to Annie S. Smith, and she executed mortgages to them, respectively, of the same interests.February 4, 1882, as stated, her husband executed a deed to her of his one-fifth interest, but did not take back any mortgage.All these deeds to Mrs. Smith were recorded, and were found by the defendant's attorneys on the files of the registry of deeds, a short time prior to the trial in this case, which was 31 years after the deeds were-executed, and several years after Mr. Smith's death.

It is not shown that the grantee assented to the delivery of the deed for record, or that she knew of its existence.She denies it.It is not shown, unless by inference, who delivered it to the registry.It is not shown that there was any change in the use and occupation of the property named in the deed.The defendant relies upon a presumption of delivery arising from the fact that it is recorded.Its counsel in their brief, quoting from the note to Munro v. Bowles, 54 L. R. A. 884, say that "the general rule undoubtedly is that a presumption of delivery arises from the fact that a deed has been recorded."

We do not need to discuss now the accuracy of this statement Assuming, but not deciding, it to be correct in the broadest sense, and that the record of a deed is presumptive evidence of its delivery, it is only a presumption, and the presumption is re-buttable.

There is rebutting evidence in this case, and it is of such a character as to warrant the finding that the deed was never delivered.Accordingly the general motion for a new trial cannot be sustained on this ground.

But the defendant has filed a motion for a new trial on the ground of newly discovered evidence of the delivery of the deed.The newly discovered evidence is that of the attorney who drafted the deed, but who did not take the acknowledgment of it.His testimony is as follows:

"It is my recollection that James M. Smith was in somewhat of a hurry when he instructed me to make out the deed from him to Annie S. Smith, and did not wait in the office to have the deed written; that he afterwards called for the deed, or that it was mailed to him by me to St. George, where he then lived.While I am not able to state that I now have a specific and independent recollection of instructing Mr. Smith as to the fact that in order that the deed to Annie S. Smith might be effective and valid it must be delivered, and what was necessary for him to do in order to accomplish a delivery, I feel morally certain that I told him that to make the deed valid and effective it must be delivered to the grantee * * * or to some one for her with her knowledge and assent, as it was and now is my unvarying and universal practice to give to parties for whom I draw deeds specific and careful instructions as to what it was necessary for them to do in order to accomplish a delivery to the grantee."

This latter motion cannot prevail for two reasons: First, the testimony could have been discovered by the exercise of due diligence before the trial.The defendant's attorneys discovered the deed before the trial in the registry of deeds.They knew the scrivener and knew where he was.They should have anticipated that the question of delivery would arise in the case of a deed found under such circumstances.Blake v. Madigan, 65 Me. 522;Maynell v. Sullivan, 67 Me. 314.A new trial will not be granted on the ground of newly discovered evidence, when it could have been discovered before the trial by the exercise of due diligence.Howard v. Grover, 28 Me. 97, 48 Am. Dec. 478;Blake v. Madigan, 65 Me. 522;Kimball v. Hilton, 92 Me. 214, 42 Atl. 394;Berry v. Ross, 94 Me. 270, 47 Atl. 512.Moreover, when the point of nondelivery was made, the defendant, if surprised, might have asked for a continuance on that ground.It asked for none.Secondly, the newly discovered evidence, if admissible, does not have such probative force as to warrant the granting of the motion.Parsons v. L., B. & B. St. Ry., 96 Me. 503, 52 Atl. 1006.

We will next examine the exceptions, 31 in number.The evidence is made a part of the bill of exceptions, and the exceptions must be considered in the light of the evidence.Hence we make now a brief review of such of the facts shown as bear upon the exceptions.And first as to the title of the plaintiff's intestate to the granite by deed.The case shows that on July 1, 1823, John Ruggles conveyed to Joshua Smalley a strip of land several hundred rods long extending in a general northwesterly southeasterly direction, and described as 44 rods wide.The title to this land afterwards came to Archelaus Smalley, and the tract constituted what was known as the Archelaus Smalley farm.The location of the northerly side line of this tract is one of the questions in dispute in this case.The exact location of the southerly side line is also in dispute; but it is sufficient now to say that the tract was bounded on the south by land which now belongs to L. W. Seavey.

In 1836, Archelaus Smalley conveyed to Sherman Converse"all the granite on and in the farm on which I now live in St. George," reserving the wood, soil and buildings.This was the farm already referred to.Afterwards in the same year, 1836, Converse mortgaged to John S. Abbott, "all my right, title and interest in and to all of the granite" on and in the same farm, to secure the payment of notes amounting to $15,000.March 16, 1862, Abbott gave a quitclaim deed of the same interest in the granite to Alvin H. Fogg.This deed contained an assignment of the mortgage debt, and therefore conveyed the grantor's interest as mortgagee.Lunt v. Lunt, 71 Me. 377.On March 10.1873, Alvin H. Fogg gave a quitclaim of four undivided fifths of all his right, title, and interest in the granite on and in the Archelaus Smalley farm to James M. Smith, Lauretus Fogg, Joseph Hume, and William Boiss, one-fifth part to each, in common and undivided.No assignment was made of any part of the mortgage debt, or of the grantor's interest therein.

The plaintiff was permitted to introduce, subject to objection and exception: A quitclaim deed, dated June 4, 1867, from Archelaus Smalley to John M. Fuller of all that part of the Smalley farm which contained the granite now in question, but the granite was excepted from the conveyance.In this deed the strip conveyed, being the southeasterly end of the original Smalley farm, was described as being about 47 rods wide at the shore end and about 46 1/2 rods wide at the other end, and bounded...