Stokes v. Dawes

23 F. Cas. 135, 4 Mason C.C. 268

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: October 15, 1826
• Status: Published

Opinion

STORY, Circuit Justice,

in summing up to the jury, said: The inquest of office is un doubtedly evidence in this case of a very high nature; but I do not think it is conclusive evidence. To give it the latter effect, it would be necessary to show, that the tenant was a party or privy to that suit. It is true, that Joshua Bentley, one of the defendants in that case, is her father, but she does not claim this estate under him. On the contrary, if she has any title, it is one derived directly to her by devise from her grandfather, William Payne. Then it is said, that the demandants arc. at all events, entitled to recover so much of the estate, as she does not show a title to; and as her title is only to an undivided moiety with the other grandchildren of William Payne, the title of the demandants must prevail, as to all the residue belonging to the other grandchildren. But this argument is not well founded in law. The demandants by their writ admit the defendant to be a good tenant of the freehold for the whole of the demanded premises. The writ admits her seisin; and she. having pleaded the general issue, has consented to be deemed tenant of the whole. See Kelleran v. Brown. 4 Mass. 443. The case might have been different, if there had been a disclaimer. Under these circumstances the demand-ants must recover by the strength of their own title; and that title is good for the whole, or it is bad for the whole; there being no doubt, that if Rebecca Stokes died without lawful heirs, the escheat of the commonwealth has been perfected. If she left a son. who was her lawful heir, and the deed to William Payne was good to pass the estate, it is wholly immaterial, who are the other tenants claiming under Payne.

Now, what is the demandants’ title? They prove a seisin of the commonwealth, under an inquest of office for an escheat of the estate. The commonwealth, being once seised, cannot be disseised. And its seisin must be deemed to continue, until it has lawfully parted with the title. See 4 Mass. 282; [Green v. Liter], 8 Cranch [12 U. S.] 246; 6 Deane, Abr. p. 71. c. 178. art. 16, § 3. Then, as to the resolve of 14th of February. 1825; it is said, that it only purports to release the right, title, and interest of the commonwealth in and to the premises; and that a mere release is not sufficient to pass a seisin. But it appears to me, that the resolve, though its terms are, as stated, must receive a reasonable interpretation. The intention was to grant the right, title, and interest of the commonwealth to the demandants; and the resolve would be nugatory, if it were to be construed otherwise. I hold, therefore, that it was a sufficient. grant to pass the right, title, and interest of the commonwealth, and that, by operation of law, the commonwealth being then seised of the estate, a sufficient seisin passed by the resolve to the demandants to maintain their action. If then their seisin is proved, the plea admits the disseisin, unless the tenant establishes a better title. The case, therefore, resolves itself into a comparison of the titles of the litigating parties. And. indeed, the ease must wholly turn upon the point, whether Daniel Mountjoy was a legitimate child of Rebecca Stokes or not; for unless he was legitimate, as no other title is shown in him, the demandants are entitled to a verdict.

The judge then summed up the facts on this point, and so left the cause to the jury. The jury found a verdict for the tenant; which was set aside, and a new trial granted, principally upon some new evidence discovered since the trial.