Peters v. Foss , 5 Me. 182 ( 1827 )

Mellen C. J.

delivered the opinion of the Court.

It appears that Wentworth, under whom the demandants claim, never had any thing more than merely a possessory title, which he mortgaged to them in 1821; but he continued in the possession of the land till his death in 1823, and some of his children remained •there after his death. But though he entered on the lands in 1801, yet in the year 1804 he distinctly recognized the title of Leonard Jarvis, to whom the lands had been conveyed by a committee of the Commonwealth of Massachusetts in 1794; and whose heirs conveyed the same to the tenant in 1825. As Wentworth, in 1804, offered to purchase of Jarvis, and claimed no title of his own, he could not then be considered a disseisor; and we do not find him doing ány act, in relation to this land, indicating a claim of property, until he made the mortgage deed ; and we are not to presume any thing in favor of a wrong doer. As that was only two years before his death, his children and heirs would have had no better title to the land in consequence ' of the descent cast, if he had not conveyed whatever right he had, before his death. But it is said that as the mortgage deed was duly registered in 1821, this constituted a disseisin of the heirs of Leonard Jarvis, so that their deed to the tenant was ineffectual. The answer to this argument is obvious. The deman-dants never entered into the actual and open possession of the land; and without such entry and possession of all or a part of the lands described in the deed so recorded, it does not amonnt to a disseisin. This we have decided in the cases of Little v. Megquier and Prop’rs. Ken. Pur. v. Laboree, cited in the argument. As to the equitable interest in the improvements made on the land, we have nothing to do with them in this cause, the legal title only being in question. The objection that the tenant is estopped by the mortgage deed made by the father of his wife, cannot be sustained. He claims nothing in virtue of her heirship ; and besides, if he was estopped to claim the land against that deed, he surely is not estopped to claim under the title of Massachusetts, which he has acquired since that deed was executed. To carry the doctrine to such an extent, would be a violation of all principle. There must be

Judgment on the verdict.