Wendell v. Blanchard

Superior Court of New Hampshire

Wendell v. Blanchard

2 N.H. 456

Superior Court of New Hampshire·Decided May 15, 1822·Published·Cited by 7 cases

Opinion

Richardson, C. J.

It has been contended in this case, that the entry of John Wendell upon the land in 1802, was not proper evidence to have been left to the jury in support of the plaintiff’s title ; but it is well settled, that he who is in possession of land has a right to retain the possession against all who can shew no better title. Hence, possession has always been held sufficient evidence of title to enable him in possession to maintain trespass against every body who can shew no title ; and hence it has always been held, that possession by one twenty years ago is better evidence of title than possession by another five years ago, unless it be shewn that the first possession was abandoned. The law of the case Wickham vs. Freeman,(l) is very questionable, and seems not to have been well considered. The lease of the land by the plaintiff in that case ivas certainly evidence of title, and so was the possession of his tenant; and why the plaintiff should not have recovered for the trespass done, after the tenant left the land, is not very easily comprehended. The court do not seem to have adverted to the circumstance, that possession is evidence of title. '

[458] ft has also been contended ¡a this case, that by the entry of Powars the plaintiff was disseized, and so can maintain no action of trespass until she re-enters; and it is true, that at common law a disseisee could not maintain trespass for any act done after the disseisin, until a re-entry. Cro. Eliz. 540, Holcomb vs. Rawlyns.—1 Chitt. Pl. 177.

But every entry and trespass upon land does not amount to such a disseisin as will have this operation. It is manifest, that it must be a disseisin by which the disseisor not only gains possession, bat actually puts the disseisee out of possession. 6 John. 197, Smith vs. Burtis.—1 Burr, 108, Atkins vs. Horde.

In this case, Powars entered upon the land, but it does not appear that he turned or held the plaintiff out of possession. He probably did enough to make himself a disseiser at the plaintiff’s election, but did not actually disseize heiv We are therefore of opinion, that the plaintiff is entitled to

Judgment on the verdict,.

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Richardson, C. J.

It has been contended in this case, that the entry of John Wendell upon the land in 1802, was not proper evidence to have been left to the jury in support of the plaintiff’s title ; but it is well settled, that he who is in possession of land has a right to retain the possession against all who can shew no better title. Hence, possession has always been held sufficient evidence of title to enable him in possession to maintain trespass against every body who can shew no title ; and hence it has always been held, that possession by one twenty years ago is better evidence of title than possession by another five years ago, unless it be shewn that the first possession was abandoned. The law of the case Wickham vs. Freeman,(l) is very questionable, and seems not to have been well considered. The lease of the land by the plaintiff in that case ivas certainly evidence of title, and so was the possession of his tenant; and why the plaintiff should not have recovered for the trespass done, after the tenant left the land, is not very easily comprehended. The court do not seem to have adverted to the circumstance, that possession is evidence of title. '

[458] ft has also been contended ¡a this case, that by the entry of Powars the plaintiff was disseized, and so can maintain no action of trespass until she re-enters; and it is true, that at common law a disseisee could not maintain trespass for any act done after the disseisin, until a re-entry. Cro. Eliz. 540, Holcomb vs. Rawlyns.—1 Chitt. Pl. 177.

But every entry and trespass upon land does not amount to such a disseisin as will have this operation. It is manifest, that it must be a disseisin by which the disseisor not only gains possession, bat actually puts the disseisee out of possession. 6 John. 197, Smith vs. Burtis.—1 Burr, 108, Atkins vs. Horde.

In this case, Powars entered upon the land, but it does not appear that he turned or held the plaintiff out of possession. He probably did enough to make himself a disseiser at the plaintiff’s election, but did not actually disseize heiv We are therefore of opinion, that the plaintiff is entitled to

Judgment on the verdict,.

Wendell v. Blanchard, 2 N.H. 456 (N.H. Super. Ct. 1822).

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Opinion

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