Ware v. Wadleigh

7 Me. 74

Opinion

Weston J.

delivered the opinion of the Court.

The plea in this case is substantially a special nontenure; although the issue tendered and joined does not technically present the material point essential to a plea of this sort; which is that the party sued is not tenant of the freehold. As no objection however is taken to the form of pleading, this ground of defence is sustained by, and deducible from the plea, if the averments it contains arc supported by competent proof. The only averment in the plea, traversed by the replication, is the seisin of Jacob Cilly. In support of the issue on her part, the tenant produced a deed of warranty of the demanded premises, from Jonathan Cilly to the said Jacob, dated December 4, 1801, acknowledged October 15, 1803,-and recorded January 23, 1823. As Jacob Cilly was, at the time of the commencement of this action, in possession of the demanded premises, by the said Elizabeth Wadleigh, his tenant at will," a fact which is averred in the plea, and not denied in the replication, and as the demandant offered no evidence of title anterior to, or going behind this, it was evidence sufficient to support the issue on the part of the tenant, and she was under no necessity to show the origin of Jonathan Cilly’s title. She has however done this ; and the evidence adduced shows that only a moiety of the premises, in common and undivided, was originally conveyed to him. Jacob Cilly however has a recorded deed of the whole; he is in possession of the whole; and he derives title from one who was the undoubted owner of a moiety. Upon this view of the evidence, he has a seisin of the whole ; defeasible it may be, as to a moiety, but not liable to be impeached on the part of the demandant, by reason of any title by him exhibited. When Jacob Cilly is called upon to vindicate his right to the whole premises, by any person entitled to bring it in question, he may be able. to. show a release from Enoch Butler to his cotenant Jonathan Cilly, who conveyed to Jacob. Or, if Jonathan had a valid title only to a moiety, his deed of warranty to Jacob,, the registry of that deed, and his actually occupancy under it, divested the actual seisin of Butler, and by lapse of time the title of Jacob to the whole, may become indefeasible. At any rate, there is sufficient proof of actual seism in him.

But it is contended that from the- facts it appears that Jacob Cilly was disseised ; and that the disseisin has not been purged by actual entry, or by judgment of law. "To this it may be replied, first, that the possession of Daniel Wadleigh was in subordination to die title of Cilly, and that although his deed to. the demandant may be regarded as a disseisin at the election of Cilly,, yet that it did not constitute a disseisin in fact; and secondly, that if it did, his subsequent entry and possession, by his tenant at will, put an end to the disseisin, and restored to him the actual seisin and enjoyment of die premises. The nonsuit is confirmed; and the tenant is to b.e allowed her costs.