Howe v. Willis

51 Me. 226

Opinion

The opinion of the Court was drawn up by

Appleton, C. J.

The parties to this suit claim to del’ive their respective titles from one Phineas Howard, who is admitted to have been the owner of the demanded premises.

It is satisfactorily proved that Howard, in 1806, by deed of warranty, duly acknowledged but not recorded, conveyed the land in controversy to John Peabody, who immediately entered into possession thereof, paid therefor, cultivated the land as a farm, and continued his occupation till 1820, when Stephen Estes acquired the title thereto, by virtue of a levy on an execution in his favor against said Peabody. By the levy, the estate, before in Peabody, was transferred to Estes, who, being once seized, is presumed to remain so seized until a disseizin shown. The legal seizin carries with it the possession. The estate thus acquired was conveyed by the heirs of Estes to Peter C. Virgin, in 1841, from whom, by various mesne conveyances, the plaintiff derives his title.

The plaintiff, therefore, must recover unless the tenants can impeach his title.

It is insisted that the levy is void, because the judgment creditor was dead at the time of the levy. But the proof entirely fails to show such to be the fact. From the testimony of Phineas Howard, jr., it is in proof that Estes was at home in 1820, when his attachment was made. From the officer’s return it appeax’s he delivered seizin to the creditor, who, haviixg thus both seizixi and title, is presumed to continue in possessioxx uixtil a disseizixx is established. If the judgment debtor remaixxed oix the premises after the levy, it was as teixaixt to the jxxdgment creditor.

It is ixx proof that Peabody, who lived on the place until 1823, after the levy, surrendered his deed to Howard, his grantor, by whom it was caixeelled. But this cancellation could íxeither divest Estes of the title acquired by the levy, xxor transfer to Hoxvard the laixd he had previously coxxveyed. The estate of Estes was unaffected thereby. Barrett v. Thorndike, 1 Greenl., 72.

After the caxxcellatioh of the deed from Howard to Peabody, the former, on the 10th of Sept., 1833, x*eleased to Solomon J. Hayward, his son-in-law, the land ixx dispute. But this conveyed xxo title, for Howard had nothixxg to convey. He had parted with his estate iix the premises to Peabody by deed of warranty twenty-five years before. Peabody had entered axxd continued ixx possession uixtil the levy; after which the judgment creditor became seized. Peabody, so long as he remained, must be deemed, in the absence of proof to the contrary, as his tenant at will. When he abandoned the premises the seizin would be in Estes, and the law would regard the possession to follow the legal title unless the contrary be shown. The possession of Peabody and of Estes continued for more than twenty-five years.

When Howard conveyed to his son-in-law he had no seizin of the premises, either by right or wrong. As the law then stood, a conveyance by one disseized was unlawful and void, and passed no title to the grantee. Brinley v. Whiting, 5 Pick., 348. But in the case cited, the one dis-seized had the title, but not the seizin. Much more then could not one, who had neither the seizin nor the title, convey by deed of quitclaim or release, what he did not own.

But Peabody had been for years in the open and exclusive possession of the lot in controversy, claiming it under his deed and improving it as his own. Hayward never claimed any interest therein; never went upon the land, nor in any way interfered with the possession of Estes or his heirs. Under the circumstances of the case, it is fairly inferrable that he had notice of the conveyance from Howard to Peabody. If so, his deed would be a fraud upon Estes, whose levy had been upon record nearly forty years.

The deed from Hayward to Bartlett, one of the defendants, was in 1858, and before the release from Howard to Hayward had been recorded. But the evidence shows that Bartlett, under whom the other tenant derives title, was fully aware of the existence of the deed from Howard to Peabody, and of the levy of Estes, for this levy is distinctly referred to in the release of Hayward, which constitutes his only title to the premises demanded.

As the grantee of Willis had no title, so he could convey none. Defendants defaulted.

Rice, Davis, Kent, Walton and Dickerson, JJ., concurred.