Flynn v. Sullivan

Supreme Judicial Court of Maine

Flynn v. Sullivan

40 A. 136, 91 Me. 355, 1898 Me. LEXIS 38

DecidedFebruary 5, 1898

StatusPublished

This text of 40 A. 136 (Flynn v. Sullivan) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Flynn v. Sullivan, 40 A. 136, 91 Me. 355, 1898 Me. LEXIS 38 (Me. 1898).

Pincite

Opinion

Haskell, J.

Writ of entry to recover land. Plea, nul disseisin. The burden rested upon plaintiff to prove title to the laud demanded. To do this plaintiff read in evidence a deed from defendant to Daniel McCarthy, her brother, dated December 14, 1875, and a subsequent deed from his son and sole heir, he being dead, to herself.

The defendant testifies squarely that she did not sign or give the deed. It was signed by mark and witnessed and acknowledged by and before a justice of the peace. Whether the original or a copy of its record was read does not appear. A copy from the record is sent up and we suspect was used at the trial. If the original were read its execution must be proved if denied. If the copy were used, such proof in the first instance would not be required, R. S., c. 82, § 110, Rule XXVI, but it only raised a presumption and served as prima facie evidence of its execution and delivery. If this presumption be rebutted, then further proof of execution and delivery must be made. Whitmore v. Learned, 70 Maine, 276; Webber v. Stratton, 89 Maine, 379.

The facts in this case are that either a copy of the record or the original deed was read in evidence without any proof whatever of execution and delivery. Defendant as a witness denies both. Certainly her denial called for more proof than mere production of the document. Her brother had some pork in her cellar that was damaged by water from the street. He asked her for her deed, the deed to her, presumably, to claim damages of the city, and she gave it to him and he returned it in about a year. She occupied, [358]*358controlled and repaired tbe premises ever since she purchased them in 1865. This brother became a pauper and she took him from the poor farm about six years ago and supported him at her house until he died, some three years after. The plaintiff, a sister of defendant, now claims by conveyance from the sole heir of this brother, and the question is whether he had a deed from the defendant, that she denies. She is infirm, nearly blind and well along in years. From her testimony and the circumstances of the case and her continued occupation and control of the property it may well be said that any presumption arising from the production of her supposed deed, without further proof of execution,, is fairly rebutted. Plaintiff’s chain of title is, therefore, broken.

Motion overruled.

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Haskell, J.

Writ of entry to recover land. Plea, nul disseisin. The burden rested upon plaintiff to prove title to the laud demanded. To do this plaintiff read in evidence a deed from defendant to Daniel McCarthy, her brother, dated December 14, 1875, and a subsequent deed from his son and sole heir, he being dead, to herself.

The defendant testifies squarely that she did not sign or give the deed. It was signed by mark and witnessed and acknowledged by and before a justice of the peace. Whether the original or a copy of its record was read does not appear. A copy from the record is sent up and we suspect was used at the trial. If the original were read its execution must be proved if denied. If the copy were used, such proof in the first instance would not be required, R. S., c. 82, § 110, Rule XXVI, but it only raised a presumption and served as prima facie evidence of its execution and delivery. If this presumption be rebutted, then further proof of execution and delivery must be made. Whitmore v. Learned, 70 Maine, 276; Webber v. Stratton, 89 Maine, 379.

The facts in this case are that either a copy of the record or the original deed was read in evidence without any proof whatever of execution and delivery. Defendant as a witness denies both. Certainly her denial called for more proof than mere production of the document. Her brother had some pork in her cellar that was damaged by water from the street. He asked her for her deed, the deed to her, presumably, to claim damages of the city, and she gave it to him and he returned it in about a year. She occupied, [358]*358controlled and repaired tbe premises ever since she purchased them in 1865. This brother became a pauper and she took him from the poor farm about six years ago and supported him at her house until he died, some three years after. The plaintiff, a sister of defendant, now claims by conveyance from the sole heir of this brother, and the question is whether he had a deed from the defendant, that she denies. She is infirm, nearly blind and well along in years. From her testimony and the circumstances of the case and her continued occupation and control of the property it may well be said that any presumption arising from the production of her supposed deed, without further proof of execution,, is fairly rebutted. Plaintiff’s chain of title is, therefore, broken.

Motion overruled.

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Bluebook (online)

40 A. 136, 91 Me. 355, 1898 Me. LEXIS 38, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flynn-v-sullivan-me-1898.