Warren v. Miller , 38 Me. 108 ( 1854 )

Shepley, C. J.

— The report states, that the demandant introduced a deed dated November 3, 1838, and recorded August 2, 1844, from the tenant to himself of the premises demanded. The execution and delivery of it must have been first proved or admitted. The tenant offered testimony to prove “ the delivery was to be void upon the fulfilment of a verbal condition stated.” This testimony was properly rejected. The case cited for the tenant, of Rhodes v. School District in Gardiner, 30 Maine, 110, does not decide that a deed delivered to a grantee may become void by parol proof of a condition subsequently performed; only that parol proof may be received that it passed from the grantor without delivery, and subject to be delivered upon a condition to be performed.

The general issue only having been pleaded, the disseizin was thereby admitted; and a prima facia case was presented for the demandant.

The tenant offered as testimony, a deed of the premises from himself to Stephen Hilton, dated December 1, and recorded December 11, 1843, which was properly excluded. The counsel for tenant insists, that it should have been received to disprove the seizin of the demandant; and professes an inability to perceive the distinction between cases, which decides that the tenant under a plea of the general issue cannot introduce proof that a third person has a present title superior to that of the demandant; and that he can introduce proof of such a title to disprove his seizin. The distinction is plain. The tenant may prove such a title to show that the demandant never was seized within twenty years, as alleged in his declaration,,and thereby defeat his suit. When he cannot disprove such seizin, he cannot prove that he has subsequently' been deprived of it by a conveyance to a third person; for the tenant has made no such issue with him, and has no interest in such a question. Stanley v. Perley, 5 Greenl. 369; Cutler v. Lincoln, 3 Cush. 125.

A copy of the record of a suit between the demandant and Stephen Hilton, appears to have been offered for the same purpose, and to have been properly excluded.

The testimony introduced under the general issue, to prove the bankruptcy of the demandant, might have been excluded as tending only to prove an outstanding title in a third person.

The proceedings in bankruptcy, and the conveyance from his assignee to the demandant were properly admitted to prove a restoration of the title. The eighth section of the Bankrupt Act relied upon, does not apply to conveyances.

Tenant defaulted.

Rice, Appleton and Cutting, J. J., concurred.