Trustees of Putnam Free School v. Fisher , 38 Me. 324 ( 1854 )

Shepley, C. J.

— The case is presented on a motion to have the verdict sot aside. The testimony presented respecting the title to the greater portion of the lot demanded, is not such as to authorize it, unless a disseizin was ereated by the conveyance in mortgage made by David Eisher, on July 2, 1822, to Isaac Hobart. That deed was duly recorded on August 28,1822. It does not appear, that Hobart ever entered upon any portion of the lot under it, or that any change of possession took place in consequence of it, until after it was assigned to Samuel Fisher, in 1842. To make a recorded deed operate to disseize the owner, the grantee must actually occupy some portion of the premises. Peters v. Foss, 5 Greenl. 182. If it would have that effect after it was assigned to Samuel Fisher, sufficient time had not since elapsed to prevent a recovery.

It is further insisted, that the verdict should be set aside, because the demandants will recover the whole of the premises, when it appears, that David Blanchard was the owner of that part of the lot separated from the rest by a highway and containing about seven acres.

The general issue was pleaded and joined without any special plea or brief statement of defence, that demandants had conveyed a part of the lot to a third person.

Under such pleadings it has been decided by the case of Stanley v. Perley, 5 Greenl. 369, and by others, and by one recently, that a conveyance made by a demandant to a person, under whom the tenant does not claim, and which does not show, that the demandant had not been seized within the time alleged in his writ, cannot be received as evidence. If ,made within twenty years before the commencement' of the suit, it cannot disprove the alleged seizin of the demandant and cannot therefore be admitted under a plea of the general issue. The deed from the demandants was therefore incorrectly admitted. Without its admission the demand-ants would have been entitled to recover that lot conveyed to Blanchard. The verdict should not bo set aside to prevent a recovery of it, for the tenant could derive no benefit from it on that account.

It is further insisted, that the verdict should be set'aside, or the demandants will recover a small triangular piece, which the tenant did not claim, and to which he disclaimed any title or possession.

By statute, c. 145, § 9, it was provided, if the tenant claimed only a part of the premises demanded, that he should describe such part in a statement, signed by him or his attorney, and filed in the case, and disclaim the residue. He might also disclaim the whole of the premises demanded without such formal proceedings. This statute was amended by the Act approved on August 10, 1846, c. 221, which provided, that if any defendant would avail himself of the provisions of that ninth section, his pleadings and brief statement should be filed within the time required for filing pleas in abatement, and not after except by special leave of the Court.

The pleadings present no proper disclaimer of that triangular piece, either according to the rules of the common law or the provisions of the ninth section before it was amended. There is a disclaimer of it incorporated with, and constituting a part of the plea of the general issue with a conclusion to the country. A regular and formal disclaimer pleaded in bar should not be incorporated with another plea, which must terminate with a conclusion to the country; and it should conclude with a verification. But such a plea to a portion of the premises demanded, could not be received since the revised statutes were in force. The disclaimer as presented, being entirely deficient' of the elements required by those provisions of the statute, was of no validity. No issue was made, or could be properly made upon it. There is no exhibition of any leave granted to file it under the provisions of the statute as amended. If it had contained the elements required, it would have been presented too late to be available.

If in the assessment of the value of the land without the improvements the demandants may recover for the value of a few more acres than they owned, this will be occasioned by the state of the pleadings, which would not be changed by setting the verdict aside. There may be much reason for doubt, -whether those portions of the premises were included in the estimate of value made by the jury.

Judgment on the verdict.

Tenney, Howard, Appleton and Hathaway, J. J., concurred.