Whitmore v. Learned

• Decision Date: 15 October 1879
• Citation: 70 Me. 276
• Parties: FRANCES L. WHITMORE v. ABEL LEARNED.
• Court: Maine Supreme Court

70 Me. 276

FRANCES L. WHITMORE v. ABEL LEARNED.

Supreme Judicial Court of Maine.

October 15, 1879

ON REPORT.

Forcible entry and detainer transferred from the municipal court for the town of Brunswick.

Date of writ July 30, 1877.

Plea the general issue with brief statement of title in one Sarah E. Holbrook under whom the defendant claims the premises as tenant.

The case and facts are sufficiently stated in the opinion.

The law court to render such judgment as the law and evidence require.

W Thompson, for the plaintiff, in an elaborate brief among very numerous authorities, cited Smith v Bodfish, 27 Me. 289. Clark v. Pratt, 47 Me. 55. Hubbard v. Little, 9 Cush. 475. Eaton v. Jacobs, 52 Me. 452. 2 Greenl. Ev. 294. Patterson v. Snell, 67 Me. 559. Brown v. Brown, 66 Me. 316. Dwinel v. Holmes, 33 Me. 172. Hawkes v. Pike, 105 Mass. 560. Hatch v. Bates, 54 Me. 136. Small v. Clewry, 62 Me. 155. Parker v. Hill, 8 Met. 449. Sampson v. Thornton, 3 Met. 275. Parker v. Parker, 1 Gray 409. Shurtleff v. Francis, 118 Mass. 154. Fay v. Richardson, 7 Pick. 91. Sawyer v. Skowhegan, 57 Me. 500-6.

A. W. Coombs, for the defendant.

SYMONDS J.

This is a process of forcible entry and detainer, originally brought in the municipal court at Brunswick, where the general issue was pleaded, with brief statement of title in one Sarah E. Holbrook, under whom the defendant claims. No allegation that the brief statement was frivolous and intended for delay appears to have been made, and the case was thereupon regularly transferred and entered at the next term of the supreme judicial court in Cumberland county, where the evidence was taken and reported to the law court. Upon the legal testimony contained in the report, judgment is to be rendered in accordance with the law and the facts.

Many objections are urged by the defendant to the use of this process, for the purpose of trying the title to lands, and enforcing the right of possession thereof, upon the facts disclosed, even if they were found to be as the plaintiff contends. But in the view taken by the court of the claim of title asserted by the plaintiff, it is not necessary, in order to reach the decision of the case, to consider the force of these objections to the form of action adopted.

The plaintiff claims title to the premises, first, under a deed, dated Feb. 1, 1865, from the treasurer of the town of Brunswick, where the land lies, purporting to convey it to James H. Tibbetts, as sold for non-payment of taxes assessed against John W. Marr, a non-resident owner; --and this tax-title is traced to the plaintiff by a quit-claim deed from James H. Tibbetts, the purchaser at the tax-sale, to John W. Bonholm, dated February 19, 1867, and a deed of warranty from John W. Bonholm to the plaintiff, dated September 11, 1873.

The title derived from this sale for taxes is obviously defective. In the argument it is not insisted upon as valid in itself, and the frequent adjudications in this state upon similar questions render it unnecessary to dwell minutely upon the errors and defects in the proceedings, which, under our decisions, prevent the treasurer's deed from having the effect to convey the interest which John W. Marr, or those holding under him, had in the premises. It is only by a strict adherence to the mode prescribed by law, that real estate can be so conveyed, for an inadequate consideration, and against the will of the land-owner.

The sale took place prior to the passage of the act of 1874, chap. 234, and is, therefore, by the last clause of the second section, expressly excepted from the operation of that statute. This action was pending when the public laws of 1878, chap. 35, and of 1879, chap. 117, were enacted, and is therefore not affected thereby. R. S., chap. 1, § 3.

So, it is open to the defendant, without tender of the tax, interest and charges, to contest the validity of the proceedings on which the plaintiff relies to make out under the statute a prima facie title by force of the tax-sale. Orono v. Veazie, 57 Me. 517. French v. Patterson, 61 Me. 203.

In no part of the proceedings, the record of the valuation of estates from which the assessment was made, the list of assessments, the warrant to the collector, the advertisement, the record of sale, or the treasurer's deed, is there any fuller description of the premises than this, " house and lot bought of David Harris." This is not only an imperfect description, but it is clearly inaccurate. The deed introduced by the plaintiff shows that the land was bought by John W. Marr, against whom the taxes were assessed, of Phebe R. Harris and three other grantors beside David Harris; and David Harris joined in it apparently for the purpose only of releasing whatever interest he might have in right of his wife, Phebe R., to whom her interest in the house and land came under the provisions of her father's will. The description is not such as to identify the property sold with reasonable certainty. Especially with reference to the advertisement, it cannot be said to contain the intelligible description required by R. S., chap. 6, § 159. Larrabee v. Hodgkins, 58 Me. 412. Greene v. Lunt, 58 Me. 518. Griffin v. Creppin, 60 Me. 270. Nason v. Ricker, 63 Me. 381. Bingham v. Smith, 64 Me. 450.

Within the rule established by the decisions in this state, we think, also, it is not sufficiently apparent from the record that the sale of the entire lot was necessary. In order to authorize the sale of the whole, it must distinctly appear of record that the sale of the whole was required to pay the tax, interest and charges. Lovejoy v. Lunt, 48 Me. 378. French v. Patterson, 61 Me. 209.

The second ground on which the plaintiff claims is, that John W. Bonholm, her grantor, was in open, peaceable and adverse possession, from a time prior to the tax-deed, and for several years after, until the deed to plaintiff was given; and that from that date she continued in such possession until it was unlawfully and without right disturbed by those under whom the defendant holds; who still retain, by the occupancy and tenancy of the defendant, the possession which they have illegally acquired.

The consideration of this claim on the part of the plaintiff leads directly to the inquiry, what title or right of possession does the defendant show; as clearly such prior possession of the plaintiff, under a tax-deed and claim of title, would be good against a stranger.

The defendant introduced an office copy, from the registry of deeds, of a deed of the same premises from John W. Marr, against whom the taxes before referred to were assessed, to one Andrew C. Bonholm, dated August 20, 1863, and a quit-claim deed of the land, dated March 28, 1876, executed in due form by an attorney properly authorized, from said Andrew C. Bonholm to Sarah E. Holbrook, under whom the defendant claims as tenant.

It is objected by the plaintiff that there is no proof of the delivery of the deed to Andrew C. Bonholm. But under R. S., chap. 82, § 99, and the rule of court relating to the same subject, the production of the office copy by the defendant, in the absence of any circumstances tending to remove the presumption arising therefrom, was prima facie proof not only of the execution, but also of the delivery of the deed. The word execution in the statute and the rule, undoubtedly includes delivery. The practice, under which office copies of deeds in cases within the rule are prima facie evidence of title, was settled in Massachusetts in Eaton v. Campbell, 7 Pick. 12, and has been uniformly followed; the reason assigned being that in this country the grantee of lands usually takes only the deed to himself, and has no right to the possession of the title-deeds of the estate. He ought not, therefore, to be required to produce the originals, nor to be obliged to prove their loss or destruction before offering secondary evidence. Ward v. Fuller, 15 Pick. 185. Scanlan v. Wright, 13 Pick. 523. Commonwealth v. Emery, 2 Gray 80.

The opinion of the court in Gragg v. Learned, 109 Mass. 168, is decisive of the law on this point in that state. It is there held that " the copy from the registry was rightly admitted as prima facie evidence of the delivery as well as of the execution of the deed."

The same rule was declared by this court in Wordman v. Coolbroth, 7 Me. 181, and has been frequently repeated. The production of the copy from the registry could not be prima facie proof of title, unless it were at the same time evidence of the delivery of the original deed; and the cases are numerous in which the reading of an office copy has been regarded as making a sufficient link in a chain of title. Blethen v. Dwinel, 34 Me. 133. Hatch v. Bates, 54 Me. 136. Webster v. Calden, 55 Me. 171.

A similar practice prevails in other jurisdictions. Dick v. Balch, 8 Peters 30; 32 Barb. 469.

The language of the court in Patterson v. Snell, 67 Me 562, on which the plaintiff relies, was not intended to impair the operation of the rule of court in this respect, nor to change the well-settled practice under it. It was there said that the appearance of the deed upon the record did not operate as a delivery, nor supersede the necessity of proof of delivery. That case, like this, was before the court on report, for the determination of law and fact, and the language of the opinion was intended to go no further than to hold, that, in a case where the circumstances attending the alleged delivery were proved, there was nothing in the fact that the deed had been recorded which did not leave it still an open question, to be decided upon all the evidence, whether the deed had, or had not, been delivered; and upon examination of the whole testimony the decision of the court was adverse...