Fowle v. Wyman

1 Super. Ct. Jud. 336

• Court: Massachusetts Supreme Judicial Court
• Decided: April 15, 1772
• Status: Published

Opinion

TRESPASS. Lands were attached by Fowle. The Defendant then conveys to Wyman.

(1) Execution levied in due Time and regular Return, &c., except the Officer did not certify, the Appraisors were indifferent and discreet Men. Plaintiff offered this Evidence of his Possession; to which the Defendant objected, but admitted. (2)

1772.

Then ’twas said by Defendant that the Plaintiff had produced no Evidence of Trespass on the Lands set forth in the Declaration, which he there bounds, ‘ Westerly on a Way; ’ the Land whereon the suppofed Trespass was done, was bounded, Westerly on a Way and Lands of J. S. — therefore the Declaration is not supported; and fo ruled unanimously by the Court. (3)

Note. The Defendant cited an Authority out of Salkeld, and one out of Hobart, of which inquire. (4) Sewall for the Plaintiff, insisted that where there was only an Omission of some of the Abuttments, it was not fatall, for then what Abuttments were set out were only Surplussage, that where there were false and contradictory Abuttments set out, they were bad. (5)

The date of the attachment appears by the return to have been November 1, 1770. The conveyance to Wyman was merely a lease “for and during the Term of Sowing and Ingathering one Crop of Winter Rye.” The date of this lease is prior to that of the attachment ; but there is on file the deposition of Elizabeth Richardson, to the effect that the delivery of the premises to the lessee did not take place until some time near the middle of November; when the deponent, “ being called as an Evidence, saw the said David cut up out of the said “ Land, Turffe and Twigg, and deliver the Same unto the said Benja. “ Richardson and Joshua Wyman respectively, and therewith the Pos“session of the same Lands.”

A regular and complete levy under an execution has been held sufficient proof of possession to sustain this action. 3 Mass. 215,523. But the omission to certify that the appraisers were indifferent and discreet men has been held a fatal defect. Williams v. Amory, 14 Mass. 20. Bradley v. Bassett, 2 Cush. 417.

Although the first impression of the Court may have been in favor of the defendant, yet that the point must have been reserved for advisement and the objection finally overruled appears probable from the fail that the case resulted in a verdict, judgment, and execution for the plaintiff.

2 Salk. 453. Hob. 16, 176.

Although before the St. of 1839, c. 151, § 3, in this commonwealth, and the Reg. Gen. Hil. T. 4 W. IV., in England, it was not necessary to name or describe the plaintiffs close in the declaration, yet if this were done by abuttals, they must be proved as laid. 2 Rol. Ab. 678. Bul. N. P. 89. 3 Stark. Evid. (ed. of 1832) 1435. But a general accuracy of description has been held sufficient. See Webber v. Richards, 1 Q. B. 443, where the rule is stated to be “ that the party is not to be turned round on account of some minute variance in one out of several particulars, but that there must be a general accurate correspondence faithfully describing the close in substance, and conveying full information to the defendant of the place in which he is alleged to have committed the trespass. Also Wheeler v. Rowell, 6 N. H. 215, — a case in point, in which it was held that a description of a close as “ abutting southerly on W.’s land ” “ did not imply that it was abutting all the way southerly on W.’s land,” and that the omission of a rod or two of abutment was immaterial.