Porter v. Hammond , 3 Me. 188 ( 1824 )

Mellen, C. J.

delivered the opinion of the Court.

The single question presented by the pleadings, and the evidence adduced to support the replication, is, whether the demandant, at the time of executing the deed to Grant, was disseised of the demanded premises; so that in consequence, nothing passed by the deed. Hammond, the alleged disseisor, at first entered, as the lessee of the demandant, for one year ; during which time he was estopped to deny the right and title of his lessor. But the case finds, that after the end of the year, and during the interval between that time and the commencement of this action, he was repeatedly called on by the demandant’s counsel to quit the premises, but he refused so to do ; and paid rent to Snow, who it is said claimed the land. This is the evidence relied on to prove the alleged disseisin. There are two kinds of disseisin; — a disseisin at the election of the owner of the land ;— •and a disseisin in spite of the true owner. The distinction between these two kinds is particularly stated in the case of Atkyns v. Horde, cited in the argument from Burrow. An owner may, and often does, elect to consider himself disseised for the sake of Using' the remedy of an action to obtain .possession of the land ; and when the tenant pleads the general issue, he admits himself to be tenant of the freehold. 7 Mass. 381. 4 Mass. 443. 12 Mass. 373. And thus both parties agree in this form to try the question of title.. But in such a case there need not exist a disseisin in spite of the true owner, to enable the demandant to maintain a writ of entry. So when to a writ of entry the defendant pleads non tenure, and the demandant replies that the defendant is tenant of the freehold ; such replication would be supported by proof that the tenant had been called on to quit the premises and refused so to do ; for if such proof should not be held sufficient, how is the owner to regain seisin and possession of the land ? The case before us, however, is different from both of those abovementioned. The disseisin stated in the replication, must be such an one as deprives the true owner of the legal power to convey the lands by deed, or devise them by will ; — that is, a disseisin in spite of the Owner. In the case of Prop. Ken. Purchase v. Laboree & al. 2 Greenl. 275, we had occasion to review the law of disseisin and consider the facts necessary to constitute a disseisin-in spite of the owner. It must be open, exclusive, adverse and continued. By looking at the case before us, we find no facts shewing the possession of Hammond to have been exclusive or adverse to the title of the demandant. He only paid some rent to Snow and refused to quit the premises. Upon these facts we do not see why Porter might not have maintained trespass against the defendant ; — or at least, why Grant might not have brought the present action and maintained it. We cannot think that the possession of the defendant, and refusal to leave the premises, would have prevented the operation of the deed and the conveyance of the title to Grant.

We are therefore of opinion that the nonsuit must be confirmed.