Thomas v. Hatch

23 F. Cas. 946, 3 Sumn. 170

• Court: U.S. Circuit Court for the District of Maine
• Decided: July 15, 1838
• Status: Published

Opinion

STORY, Circuit Justice,

in summing up to the jury, went into a full examination of all the evidence, and of the points made by the parties. But such portions only of the summing up are thought necessary to be stated, which more immediately respect the points of law raised at the trial. After having given a general outline of the case, and stating that the district judge concurred in the views which he was about to expound, the judge proceeded as follows:

In the first place, it is proper to consider what is the true construction of the deed from Dunning to the demandants, of the 1st of June. 1800. It conveys five eighth-parts of the whole tract, with the exception of the ten acres conveyed to Hammond, the one acre conveyed to Rice, and the strip of land then occupied by Pickering. The deed conveys nothing whatsoever in the excepted parcels. Under that deed, therefore, the'de-mandants took nothing in the Rice lot, now more familiarly known as the Hyde lot.

I am aware that a construction somewhat different from what has been above stated, has been given to this same deed by the supreme court of this state, in the MS. case which has been cited at the bar. If this were a question of purely local law, we should not hesitate to follow the decision of that learned court, for which we entertain the greatest respect. But the interpretation of a deed of this sort is in no just sense a part of the local law. It must be interpreted everywhere in the same manner; that is to say, according to the force of the language used by the grantor, and the apparent intentions of the parties deducible therefrom. The construction given by the state court is, in effect, this: That the deed does not convey the whole five eighths belonging to the grantor in all the tract of land, excepting the excepted parcels; but only so much as would remain of the said five eighths, after satisfying the claims of his co-tenants for their three eighths conveyed by him in the excepted parcels. The language of the court, in their opinion, is: “The parcels sold (by the grantor), being reserved out of the five-eighths, the residue was conveyed to the petitioners, (the de-mandants). He (the grantor) had given deeds of warranty to his prior grantees, and in selling the residue he meant to make provisions, that they should not be disturbed. In order to carry into effect the plain intent of the parties, it must have been contemplated, that in any partition, which might be made, the parcels excepted would be assigned as part of the five-eighths; and that the petitioners (the demandants), and whoever might claim under them, would be entitled to the residue of that proportion of interest to be set off to them in severalty. The petitioners (the demandants) did not purchase five-eighths; but they purchased such fractional parts of the whole, as would remain after deducting from five-eighths the parcels before sold.” Now, whatever equity there might be in such an arrangement, and however proper it might be (if it existed) to be carried into full effect by the state court, on a petition for partition, to which the prior grantees might all be parties, I do not well see, that it would be conclusive upon the merits of the present controversy. But with the greatest deference for the learned state court, I feel myself bound to say, that I cannot adopt the interpretation thus put upon the terms of the deed. I find no sufficient warrant for it in the language and purport of that instrument. The granting part of the deed, commonly called the premises, conveys “a certain lot or tract of land, situate,” &e., describing it by metes and bounds: and then adds: “The whole containing two hundred and twenty-five acres, more or less, of which only five-eighths, common and undivided, is the property of the abovenamed James Dunning (the grantor), and is hereby conveyed as abovesaid, with the exceptions of about ten acres of land conveyed by deed to "William Hammond, &c. &c., and also one acre conveyed by deed to Rice, &c. &e.; and also a strip of land, on which stands a store, &c., containing one-eighth of an acre, &e.; which exceptions are reserved out of the five eighths, as aforesaid.” Now, however inartifieially the deed may be drawn in its form and language, I cannot but think it clear, that its true meaning is, that the grantor conveyed five undivided eighth-parts of the whole tract, except the ten acres, the one acre, and the strip of land above mentioned. In the excepted parcels he conveyed nothing; in the remainder of the tract he conveyed five eighths, to wh'ich it is dear he then claimed title. The words, “which exceptions are reserved out of the five eighths conveyed as aforesaid,” have a natural reference to the preceding descriptive words of the deed, giving the boundaries of the whole tract, five eighths of which would, but for the exceptions, have been conveyed; and these words show that the five eighths of the excepted parcels are not granted. Upon any other interpretation, it is difficult to perceive what portion of the whole tract is conveyed. It would clearly not be five eighths, but five eighths minus some possible, indefinite, unascertained deduction, if one may so say, for owelty of partition, in some future division of the entire tract among all the parties, who were, or might become, entitled thereto. It appears to me that there is no such qualification in the deed. Five eighths and no less of the tract are conveyed in all the land, within the scope of the conveyance.

In the next place, did this deed, in 1800, to the demandants, convey the land only to the bank of the river; or did it eonvev the flats also, supposing the grantor capable of conveying the same? The descriptive words, so far as respects this point of the boundary are, “to Kenduskeag stream, thence by the said stream, • as the stream runs, until it comes to the head line of the lot of land owned and improved by William Hammond.” I consider the law to be clearly settled, that a boundary on a stream, or by a stream, or to a stream, includes the flats, at least to low-water-mark, and in many cases to the middle thread of the river. It may be different where the boundary is, “to the bank,” or “by the bank,” or “on the bank” of a river, or “to or by a monument on the bank;” for in such cases the boundary is, or may be limited to the very bank, and may not extend into the stream, or the fiats thereof, ³ The case of Lapish v. Bangor Bank, 8 Greenl. 85, is entirely conclusive on the point, that a boundary on a stream includes the flats.

If this be, as I am clear it is, the true construction of the deed: then the next inquiry is. whether the deed of 1803 was good to pass the title of Vincent Dunning, the non compos. It was in fact, and so, in contemplation of law, it is to be deemed, a partition deed between tenants in common. Harlow assumed to act. and to pass the title as guardian, receiving an equivalent release for the non compos in the other lots. Now, I am prepared to say, that, where a partition deed is made by tenants in common, and one of the tenants is under guardianship, the deed of partition, when executed by the guardian, is good to pass the title of the ward, at least until it is avoided by the non compos, or those claiming in privity of estate under him. The present deed has never been avoided by any person claiming under the non compos: and, therefore, I think, that, at least as to strangers to that tifie, in a case of partition, it is to be taken to be good. But then it is urged, that there is no direct proof, that Harlow was at the time the lawfully appointed guardian of the non compos. It is true, that no commission is produced, or can now be found on the probate records. But other papers are produced from the probate records, which show, that he was treated by the probate court as the lawful and regular guardian. Thus, the court received an inventory of the estate of the non compos from him as guardian in 1792; and as long ago as 1808, it settled and allowed an account with him as guardian. Under such circumstances, there is certainly strong prima facie evidence, after such a lapse of time, to supply the direct proof of a probate appointment; and we all know how loosely, in those times, the records of the court of probate were in many cases kept.

Then, what does the deed of 1803 purport to convey? Does it convey the title of the grantors to the upland only, or to the fiats also? I am of opinion that it conveys the title to the latter, as well as the former, in regard to lot number seventy-three. The deed refers to the plan of Hodsden, and it conveys the lots “as laid down on (the) plan drafted by Moses Hodsden, Jr., on the 14th of May, 1S01.” By necessary implication the plan is made a part of the description, and must supply any defects of the other specifications, in the same way as if it were annexed to, and made part of, the deed. This is the clear doctrine in the case of Lunt v. Holland, 14 Mass. 149. Now, by reference to the plan, it is plain, that there are no descriptive lines or monuments on it in this part; but that the boundaries of the lots are on the stream of the river, and not short of it. And it must be presumed, that the parties intended a full and complete partition of the whole tract, and of all their interest therein, unless some other inference is to be deduced from the words of the conveyances. None such is pretended. But then it is suggested, that at the time of this conveyance, in 1803. the grantors were not seized of the Hyde acre, or any part thereof, and therefore were incompetent to convey it. Whether they were so seized or not is a matter of fact, upon which the jury must pass judgment. If they were not so seized, then it is clear, that so far the deed is rendered inoperative. As to the flats, I am not aware, that, at this time, there is any pretence to say, that Hyde was in seisin thereof, in virtue of his title to the acre purchased by him of Rice. The deed to him and to Rice did not extend, as I shall have occasion, presently, more fully to consider, beyond the bank of the river, so as to cover the flats. And no open visible possession of the flats, as far as I recollect, is shown, or attempted to be shown, in Hyde at this period. Then, as to the upland. It is clear, that the grantors were entitled, ~in 1803, to three eighth parts of the whole tract, including the Hyde acre, as tenants in common. It does not appear, that there was any open disseisin or adverse possession of any part of the tract against them; and indeed, there is strong evidence the other way. The one acre does not appear to have been enclosed by any fence from the other part of the tract, or in any other manner to have been in the visible and exclusive possession of Rice or Hyde. Now. it is clear, that under such circumstances, where there is no visible adverse seisin or possession of a part of a tract, an entry by any co-tenants on the tract gives a seisin of the whole, according to their titles; because the tract is not severed or divided by any visible bounds, or enclosure, or adverse seisin; and the entry must enure as a seisin of all the co-tenants, and for their benefit. But I shall leave it to the jury to say, whether, under the circumstances, there was any such open, visible, and exclusive possession of the one acre in Hyde, at the time of the partition deed of 1S03. as amounted to, and was a disseisin of his co-tenants. If not, then this objection is overcome.

In the next place, as to the construction of the deed of the commonwealth of Massachusetts to the heirs of James Dunning, in 1802. It is said, that that deed conveys the tract of'land only to the bank of the river, and thence upon the bank of the river; and that this excludes the flats from the grant. But it is to be remarked, that this is not the whole description; for the deed conveys all the right, title, and interest of the commonwealth “unto a lot of land, numbered ten, as was surveyed by Pa»jt Holland, in the year 1801.’’ Now, if, by that plan, the lot is bounded on the river, and has no other specific boundaries marked than the river, it might deserve consideration, whether, taking the plan and the deed together, the commonwealth did not mean to convey the flats, as passing by operation of law with the upland. Such a construction has been adopted on some occasions by the supreme court of the state of Massachusetts and of Maine, in furtherance of the apparent intent of the legislature. ⁴ But be this as it may, it is clear that, as to all persons but the commonwealth, the demandants were capable of a sole seisin in the flats, in virtue of the conveyances to them. For, though the commonwealth cannot be disseised, and persons entering upon lands held by the commonwealth are to be deemed mere intruders, yet, as against all other persons, the entry will give a seisin capable of sustaining a writ of right. If, therefore, the demandants did, in virtue of the deeds to them, acquire a seisin of the flats, although they might bé ousted by the paramount title of the commonwealth, .yet, until such ouster, they were to be deemed as having a rightful seisin against third persons.

The next question which arises is, whether the demandants have been in seisin of the premises, either of the upland or of the flats, or of both, within the prescriptive period of twenty years. If they have shown a seisin, that seisin will be presumed to continue, until some adverse seisin or disseisin is shown. In cases of co-tenants, a disseisin is not to be presumed; but it is to be established by competent proofs of an exclusive adverse seisin; for, ordinarily, the possession and seisin of one co-tenant is deemed the possession and seisin of all. I shall first consider the evidence of seisin as to the flats, and next as to the upland. But, before I proceed to the consideration of the evidence, as to the seisin, it seems necessary to examine the title of the tenants to the Hyde acre; and to. ascertain, whether, upon the true construction of the deed of Dunning to Rice, in 1798, any thing more than the upland passed, or was intended to pass by that deed; for it may have a most important bearing on the case, whether that deed was limited to the bank of the river, or by construction of law, included the flats in front of the upland. The boundaries in that deed are as follows: “A certain piece of land situate in Bangor, aforesaid, being and lying on the south side of Kenduskeag stream, butted and bounded as follows, viz. beginning at a pine stump on the bank of said stream, and running northwest 2° north on the line of land belonging to William Hammond, twenty rods to a stake and stones, thence south 43° west 8 rods to a stake and stones, thence southeast 2° east to a rock on the bank of said stream, thence on the bank of said stream to where it first began, together with all the fishing privileges, contagious (contiguous), and belonging to the same, with all the privileges and appurtenances thereunto belonging, being one acre, be the same more or less.’’ Now. it is apparent from the language of this deed, that it bounds the grant by known monuments on the bank of the stream, a pine stump at one end, and a rock at the other. And, upon the known principles of law, a boundary on the bank or by the bank, referring to fixed monuments on the bank, of a stream, limits the grant to the bank, and excludes the flats below the bank. Therefore, I am of opinion, that, upon the true interpretation of this deed, the land conveyed therein is bounded by the bank of the river, and does not extend or cover the flats. The subsequent conveyance by Rice to Hyde, in November, 1801. is a mere quitclaim of all Rice’s title to the same land, as is the subsequent deed of Rice to James B. Fiske, in October, 1823, under whom the tenants claim. A constructive seizin of the flats by Rice or Hyde cannot, therefore, by the terms of the deed, be inferred in either of them; but it must be established by proofs of actual sei-zin. I do not enter into any examination of the general doctrine, what is the effect of a conveyance by ofle tenant in common of the entirety of one part of the lands held in common, upon the rights of the co-tenants. It is admitted, that it could not prejudice their rights; but could only apply, by way of es-toppel, to so much of the land as might be assigned to the grantor, as his purparty in the land so conveyed upon a partition. See Varnum v. Abbot, 12 Mass. 474.

Let us then proceed to the consideration of the evidence as applicable to the point of actual seizin. (Here STORY. Circuit Justice, went into an examination of all the evidence applicable to the seizin of the flats and also of the upland. He concluded by leaving the question of seizin as to the flats, and also to the upland, to the jury upon the whole of the evidence, and stating that the district judge concurred in the views of the law and facts which he had expressed.)

The jury found a verdict for the tenants.

A motion was afterwards made for a new trial, by .the demandants, upon various grounds: (1) That the verdict was against the charge of the court in matters of law. (2) That it was against evidence and the weight of evidence. (3) That certain documents had been improperly admitted by the court as evidence; viz. a deed from Jeremiah Dudley to the demandant Thomasj and the record of a petition for partition in the case of James Thomas and Jeremiah Dudley against persons unknown, including the premises demanded. (4) That William Emerson was improperly admitted as a witness. The motion was accordingly argued at the October term, 1S37, very elaborately, by Messrs. Rogers and Sprague for demand-ants, and by Messrs. Godfrey and Appleton for tenants, upon most of the grounds, upon which the same points had been argued at the trial, so far as matters of law were concerned. The court held the cause under advisement nisi; and afterwards their opinion was shortly delivered, as follows, at May term, 1838:

STORY, Circuit Justice. We'have considered this cause with great deliberation, and remain of the same opinion, which we entertained after the argument upon the motion for a new trial. We are of opinion, that there must he a new trial. As the facts are again to be submitted to a jury, we do not wish to prejudice the cause by an elaborate examination of the evidence applicable to the points made at the bar. Our opinion proceeds upon this short ground, that in every view of the evidence properly applicable to the flats, whatever might be the ease as to the upland, the verdict of the jury could scarcely have been for the tenants, without either disregarding the instructions of the court in point of law. or giving an effect to the evidence, which, in a just and legal sense, was not justified by it. New trial awarded.

A new trial was afterwards had, and a verdict found for the demandants. A motion was then made for a new trial; but the cause was afterwards compromised between the parties, one of the demandants and. one of the tenants having died pendente lite.

3 See Storer v. Freeman, 6 Mass. 435; Hatch v. Dwight. 17 Mass. 289: Hasty v. Johnson, 3 Greenl. 232: Dunlap v. Stetson [Case No. 4,164]: King v. King, 7 Mass. 496: Lunt v. Holland, 14 Mass. 149; Morrison v. Keen. 3 Greenl. 474; Graves v. Fisher, 5 Greenl. 69; Lapish v. Bangor Bank, 8 Greenl. 85.

4 See Lunt v. Holland, 14 Mass. 139. and Lapish v. Bangor Bank, 8 Greenl. 85. The latter is directly in point on the very resolve of March. 1801. respecting the Bangor settlers. See, also, Knox v. Pickering, 7 Greenl. 106.