Cary v. Whitney , 48 Me. 516 ( 1860 )

The opinion of the Court was drawn up by

Kent, J.

In this case, the demandant claims to recover, upon the strength of his legal title, the premises demanded. He shows a deed from the Land Agent of the State to Dennis Fairbanks, jr., assignee of 'Dennis Fairbanks, dated October 22, 1841, which includes the premises described in his writ, and traces title to himself by a deed from Dennis D. D. Fairbanks (who is the same person named in the deed from the Land Agent as Dennis Fairbanks, jr.) to T. J. Hobart, and from Hobart to himself and Whitaker, and from Whitaker of his portion to demandant. These deeds, which trace and convey the title directly from the State,, make undoubtedly a prima facie case for the demandant.

The tenant puts in a resolve of the Legislature, of March 18,1840, by which the Land Agent was “ authorized to convey to Dennis Fairbanks, (senior,) or his assigns, lot number three in township F, Range 2, west of the east line of the State, on which lot he has erected a saw and grist mill.” This is the same lot conveyed as above, by the Land Agent, to Dennis Fairbanks, jr., as assignee. The tenant then puts in a quitclaim deed from Dennis Fairbanks to Mary Reed, dated June 19, 1840, recorded July 3, 1840, of two acres, part of said lot No. 3, and the premises described in the writ in this case. He traces title to himself of these two acres by a series of quitclaim deeds.

The question is, whether the plaintiff is entitled to judgment for possession of the two acres thus conveyed.

The tenant contends that, irrespective of the resolve and the right and title under it, he produces the elder deed, and denies that; under our constitution and laws, a junior deed from the State is evidence of a paramount title. He insists that the feudal doctrine, that all lands are held mediately or immediately from the State, or sovereign power, is not and never has been in force here. .

It may be granted that the State is not the only source of title, and that a deed from the State is not conclusive against a title from another source, clearly traced and legally established. But we do not think that a title traced directly from the State can be overthrown by the production of a quitclaim, deed of an earlier date, from a third party, without any evidence of title, or claim, or right in such person.

If we look at the resolve introduced by the tenant, we find that Dennis Fairbanks, senior, is named as the person to whom the State extends its bounty, by authorizing the Land Agent to deed to him this land. Dennis Fairbanks, as we may well presume, having solicited this grant, and having afterwards acted under it, he, and those claiming under him, may very justly be estopped from denying the title of the State. Indeed, it is apparent that he never did deny or doubt that title; and there is no fact in the case which leads us to question it.

But the tenant claims that the resolve itself, without any further action, did, by its terms, convey the fee in the whole lot, and that, therefore, Dennis Fairbanks had a perfect title when he conveyed the two acres to Mary Reed.

It is apparent that, from the earliest times, in Massachusetts, and in this State since the separation, it has been held that proprietors of land in common, who acted in a corporate capacity, could alienate their lands and transfer the title by vote without deed. This right, however, was derived from and depended upon the peculiar language of the statute by which such proprietors were “ empowered to order, manage, improve, divide and dispose of their common lands in such way and manner as shall be concluded and agreed upon by the major part of those interested, at any legal meeting.” As stated by O. J. Mellen, in Thorndike v. Barrett, 3 Maine, 386,— “This power’, given to proprietors, is a peculiar one, a power of agreeing on the mode of dividing and disposing of their property-, a power which persons in their individual capacity do not possess; they must conform tó those principles and modes of conveyance which our statutes .have expressed: The difference is important.” The particular point to be observed is, that the power to pass title by vote is anomalous, and limited to the single case of proprietors of common land, and as to them rests entirely upon a statute grant. Folger v. Mitchell, 3 Pick., 400, and cases cited by the Court in that case.

The State, however, may grant a title by a resolve. This was decided in Mayo & al. V. Libbey, 12 Mass., 339, and has been since reaffirmed. But it does not follow, that every resolve which contemplates a conveyance, at some time, necessarily, by its terms, conveys a fee instantly, without any further act. The distinction is well illustrated in the above case, and the cases of Lambert v. Carr and French v. Harlow, both in 9th Mass.

The resolve in favor of settlers in Hampden clearly expressed a purpose to grant a release of the Commonwealth’s title at once, and by its own terms. The language was, — “ Resolved that there be, and hereby is, released to each of the inhabitants of Hampden, who settle, &c., all the right and title of this Commonwealth, to one hundred acres of land in severalty,” <fcc.

In the case of settlers in Bangor, (9 Mass., 187,) the resolve declared that all the settlers in that town, before a certain time, should be entitled to deeds of their respective lots, upon paying, &c. In the latter case, there are no words of grant, release or confirmation, but simply a prospective provision for a deed.

The Court accordingly held that the resolve in favor of the settlers in Hampden was a grant of title, and that in favor of Bangor was not; and that a deed was necessary to pass the title to these settlers.

The distinction seems to be, that, where the resolve contains words of grant, or release, or confirmation, or a clearly expressed intent to make a conveyance of the title at the time, the title may pass hy force of the resolve alone. This, perhaps, would follow, where the grant of title was clearly expressed, although the resolve contemplated a deed to be given to confirm the title. But, where the resolve does not contain any words of grant, but simply authorizes a public officer to convey a lot to a person named, or his assigns, the title will not pass until such deed is executed. Thorndike v. Richards, 13 Maine, 430.

In this case, the lot could not have been legally taken on execution as the property of Dennis Fairbanks, until a deed had been made to him. No title passed to him by virtue of the resolve alone.

The resolve, apparently, was passed to give to Fairbanks the rights secured by the statute of 1838, c. 354, § 2, (R. S. of 1841, c. 3, § 28,) to those who might erect a saw and grist mill on townships lotted for settlers. Fairbanks had erected such mills in township F, before the passage of the law. That statute provided that those who erected the mills should “ be entitled to a deed of such lot.” This resolve provides “ that the Land Agent is hereby authorized to convey to Dennis Fairbanks, or his assigns, lot No. three.” ' There are no words of grant, or release, or confirmation, ,in either law. It was a donation from the State that was intended. The State received nothing directly to itself. In view of a public interest and benefit by the erection of the mills, it proposed to confer its right in a lot of land. The State, before conveyance by the Land Agent, was not holding the land as trustee for its intended beneficiary. It is not the case where a vendor of real estate has received the purchase money under an agreement to sell and convey.

The tenant insists that, by the deed to Mary Reed, she became the assignee of the two acres, and that the deed to Dennis Fairbanks, jr., from the Land Agent, was void and inoperative, at least, as to the two acres, because he was not the assignee, in fact. He contends that there is no legal evidence that he was ever designated by his father as his assignee, and that the letter of Dennis Fairbanks, senior, to the Land Agent, if admitted, does not make him such assignee, because it is not a deed. The evidence that the father signed the letter or paper introduced, is apparently deficient as proof of that fact, as the witness (Mr. Blake) only says that he “ saw a letter from Dennis Fairbanks, in his handwriting, in the land office; that he has seen him write, and that the letter was watered on to the back of the deed.” The original deed and letter were not produced at the trial. This deficiency in proof might, probably, be easily supplied, if necessary. The important question is, how far is the action and deed of the Land Agent conclusive upon this point as to the assignee. The deed is to “Dennis Fairbanks, jr., assignee’of said Dennis Fairbanks,” and declares that the deed is executed by the Land Agent, by virtue of the authority in the resolve.

The first question is, whether this is not prima facie evidence that the person named was the assignee. Is the demandant obliged to prove, by evidence aliunde, that he was such assignee ? Can third parties, who show no connection with the title from the Land Agent, interpose a valid objection to the title of demandant, until he has proved the fact of assignment, and the legal right of the son to take the deed as assignee ? We think not. The Land Agent was authorized to give a deed to an assignee. He has given such a deed, which is, prima facie, sufficient.

But the tenant urges, if we admit the deed to be prima facie sufficient, yet, that he has shown, by evidence, that Mary Reed was in fact the legal and rightful assignee of the two acres deeded to her; and that, therefore, the deed of the Land Agent is void. This raises the question whether the decision of the Land Agent, and his conveyance, accordingly, to a person as assignee, is conclusive as to a party situated as this tenant is. »

In the cases of Lambert v. Carr and Harlow v. French, 9 Mass., before cited, a question very similar to the one before us was raised and determined. By the resolve therein referred to, the agents for the sale of Eastern lands, corresponding in powers and duties to the Land Agent of the State, were empowered and directed to convey by deed to the actual settlers in Bangor, or their legal representatives, their respective lots of one hundred acres each. This committee deeded a lot to Stetson, Lapish and French, describing them as “ assignees of James Budge.” The tenants offered to prove that Budge was not a settler on that lot; but that their ancestor was in truth and fact the settler entitled to the deed. In the case of Harlow v. French, the question was, whether the boundaries described in the deeds of the committee were conclusive, notwithstanding the evidence offered of a mistake as to the true line, and the adjudication of referees showing such to be the fact.

The Court, in these cases, decided that the determination of the agents was conclusive on both points, viz. — the per- • sons entitled to, and the limits of the respective lots. The Court very forcibly say, that “ any other construction would, in our opinion, render the resolve of the Legislature void and useless, or mischievous in the highest degree for its uncertainty, and by rendering it the source and occasion of endless quarrels and contentions. If a transient possession of land might thus become a title, what committee or judicial court can ever settle the question who was the first settler, or who are his representatives ? Until revoked by .the government, (if it has the power, which is questioned,) that grant by the agents continues in full force, and is an exclusive title to the individual to whom it is made, against all other individuals.”

It is true that, in this case, the donee was named in the resolve, and, if no other person could have taken the title by ■the terms of the resolve, a deed to any other person by the agent, as between the donee named and the State, might have been void or inoperative. But this resolve provides that the deed may be given to “ an assignee,” by the Land Agent.

The Land Agent determines that Dennis Fairbanks, jr., is such assignee, and deeds accordingly; and this determination -is binding and conclusive upon the parties now before us. -Any other construction would leave land titles from the State, which have been transmitted through many different tenants, -uncertain and dependent upon parol or other proof of a mis-take in a matter of fact by some public officer many years before.

The legal title to the whole lot passed to Dennis Fairbanks, jr. The deed is unconditional. There is nothing in the re- - solve which contemplates any condition as to the mill lots. The requirements as to settling duties apply only to the other lots taken up by individuals, and which are to be deeded by ■the State without price, in consideration of the building of the mills, but such lots to be subject to settling duties. Had there been a requirement that settling duties should be performed on the mill lot, the State only could take advantage of the omission.

The tenant further contends that, if the legal title did pass ■ to Dennis Fairbanks, jr., he took it charged with.a trust.

.If there was any trust, it does not appear that in this suit' ,at law it could b'e interposed to prevent the demandant .from -recovering his legal estate. A court of equity only could properly enforce the trust. But, as the facts are before us, and as we understand that other cases of dispute in reference -to-the titles of this lot have arisen, we may properly express ■ our views on this.point. The State did not hold the .land, after the passage of the resolve, as trustee of Fairbanks, senior, as before stated; and had no actual notice of any interest in Mrs. Reed, when the Land Agent gave his deed. But the tenant contends that Dennis Fairbanks, jr., took and held it, subject to a trust in favor of Mrs. Reed. There is clearly no declaration of trust in writing. The deed to her is a release and quitclaim of grantor’s right and interest in two acres. There is no writing in the case which “ creates or manifests” a trust. By the statute, “ all trusts concerning land” must be thus shown, except such as arise by implication of law. The trust that arises by implication of law is when the money is paid by one party and the deed taken by another. Buck v. Pike, 11 Maine, 9; Baker v. Vining, 30 Maine, 121; Hunt v. Roberts, 40 Maine, 181.

No money was paid to the State by any one. Mrs. Reed had paid nothing and done nothing towards erecting the mill which was the moving cause for the State’s bounty. No trust by implication, as to the State, could arise on that ground.

If the deed from the State had been given to Dennis Fairbanks, senior, it might have been necessary to decide at law whether, by the terms of the deed to Mrs. Reed, this after-acquired title would enure to her benefit. But no such question arises.

Dennis Fairbanks, jr., who took the title, has never, in writing or otherwise, created or manifested a trust in favor of Mrs. Reed. She did not aid in obtaining the title, and no implied trust arises. His knowledge of the fact (if it was established that he did know that his father had given a quitclaim deed to Mrs. Reed) would not create or establish a trust. "If the resolve alone had given his father a legal title, such actual knowledge might perhaps have prevented him at law from setting up an after acquired title, if her deed had not been recorded; but would not create a trust to be enforced in equity.

There is no sufficient evidence of any express or implied trust ip faVor of Dennis Fairbanks, senior. If his object was to place the title in his son to prevent his creditors from levying upon the land, this would be clearly illegal and fraudulent, and no Court could sustain such a trust.

But, if an implied trust, as against Dennis Fairbanks, jr,, could be raised, it would be difficult, upon this evidence,- to fix that trust upon the demandant. It is sufficient notice, to subsequent purchasers, of a trust which is expressly declared in a deed, to show that the deed was recorded. R. S. of 1851, c.. 73, § 12; R. S. of 1841, c. 91, § 32. But, by the same statute, § 12, it is -provided, “that the title of a purchaser, for a valuable consideration, cannot be defeated by a trust, however declared or implied by law, unless the purchaser had notice thereof.” This is but an affirmation of the well settled doctrine in law and in equity. The evidence in the case would hardly be sufficient to charge such notice as the law requires, upon either Hobart or Cary and Whitaker.

Dennis Fairbanks, senior, took possession of lot No. 3, as early as 1828 or 1829, and continued that possession until he gave his deed to Mary Reed, in 1840, of the two acres; and the possession of the two acres has been continued by Mary Reed, and those claiming under her, to the present time. The possession, whilst the title remained in the State, even if ad.verse and exclusive in its nature, could not operate to dis-seize or limit the State. A title cannot be acquired by adverse possession of the land of the State, whilst the title and property is in the State.

The possession in this case has been continued less than twenty years since the deed from the State, and therefore the statute of limitations as to the title does not apply.

But it is equally clear that the possession has been of such a nature, that it entitles the defendant to betterments’. This is not denied by the demandant.

The result is, that the demandant has sustained his title to the demanded premises, and is entitled to judgment in his favor according to law. The tenant is entitled to betterments. The value of the improvements by defendant, and those under whom he claims, and the value of the land, without such improvements, at the time of trial, and also at the time Dennis Fairbanks went into possession of lot No. 3, to be estimated and determined by Washington Long and Benjamin L. Staples, and, if they cannot agree, they may choose a third person as umpire, as agreed by the parties, according to the report of the case.

The case to stand until report of said referees, and judgment thereafter to be rendered as in case of a verdict.

Tenney, O. J., Rice, Appleton, Cutting and May, JJ., concurred.