Temple v. Partridge , 42 Me. 56 ( 1856 )

Tenney, C. J.

-This action is for the recovery of damages, arising to the plaintiff, by reason of a fraud alleged to have been practiced by the defendant, in procuring title to lands, in the town of Oldtown, from her at a price below the actual value.

In her writ, the plaintiff alleges an authority in the defendant from her, to make sale of the lands, as her agent, she living at the time in Boston; and she proved that he received her deed of the lands, with covenants of warranty, for the consideration of the sum of §350, and in two weeks after conveyed the same with like covenants, to one, (who had, prior to the deed from the plaintiff, been in negotiation for the purchase,) for the consideration of the sum of $625. The case finds, that it did not appear, that the title to the lands had been called in question.

The defendant offered to prove, that the husband of the plaintiff had no title to the lands, which she had shown were sold by her, as administratrix of his estate, to one Pierce, and by Pierce conveyed afterwards to her, except under a deed from one Thomas Bartlett, dated in 1846; that at the time of the conveyance from Bartlett, he had a wife, who is now living, that she did not release her right of dower in the premises, and that Bartlett was dead. Evidence was also offered, that Bartlett was seized of the interest, which he had in the lands, in common with other persons, and that there had been no division thereof. This evidence was not permitted to be introduced.

If the evidence offered had a tendency of itself to prove an incumbrance upon the lands, it would have contradicted the declarations in the covenants of the deed, which the defendant received from the plaintiff, and the deed, which he gave afterwards. No person having asserted in any mode a claim, which, if existing, would constitute an incumbrance in himself, the defendant is not permitted to prove those solemn declarations, made by himself, to be false, in the manner proposed.

But the proof offered, when taken alone, was insufficient to show an incumbrance upon the land, inasmuch as no proof was offered, that the widow of Bartlett was entitled to dower in the premises. It may have been land in such condition during the coverture, that she was not dowable therein. And no evidence was in the case, as shown by the exceptions, to supply this defect. Unless evidence is before the jury, which, with that offered and excluded, may be -sufficient, if found true, to establish the proposition, for which it is offered, when taken in the most favorable light for the party offering it, he cannot be regarded as really prejudiced by the exclusion.

Exceptions overruled.

Hathaway, Appleton, May and Goodenow, J. J., concurred.