Cutts v. King , 5 Me. 482 ( 1829 )

Weston J.

delivered the opinion of the Court at the ensuing term in Cumberland.

Of the premises demanded, the tenant claims only that portion, which is covered by a part of the store. He deduces his title from JYancy Ayer ; and it is well made out, if the land described in the deed, dated June 14,1800, made by David Sewall in behalf of the Commonwealth of Massachusetts to her, embraced this part of the premises. It was bounded twenty-four feet on the road, and extended north-westerly therefrom about thirty feet, where an old small dwelling house, improved or occupied by Peter Page, then stood. Whether that house stood upon the land conveyed, or whether it extended to that house, does not distinctly appear from the deed. In either case, the extent of the land would depend upon the location of the house. If it did not stand on the land, the house would be the terminating monument given; if it did, the land would extend as far as the house did, in the direction from the road. In March, 1803, Nancy Ayer conveyed the same land to George Tucker ; “ together,” as the deed states, “ with an old house standing on the premises, lately occupied by Peter Page.” From this deed it would seem, that the house stood on the premises, when she received her deed from the agent of the Commonwealth. The Page house has been since taken down or removed, and it is agreed that its site cannot now be rendered certain by the testimony of witnesses. It is therefore insisted by the counsel for the demandant, that the tenant must be restricted to the length of the line given from the road, in the deed under which he claims, which is about thirty feet. By the use of the term, “ about,”, it may be understood that exact precision in the length of line was not intended; but if the place where the monument stood, fay which the length was controlled and determined, cannot be established, the tenant must be limited to the number of feet given, and the demandant is entitled to recover the excess, which ifc four feet and a half.

'I'lie law requires the best proof in the power of a party to produce $ and it will be sufficient, if of a nature to affitrd reasonable satisfaction to tbe mind. Monuments referred to in deeds are often perishable ; as trees, wooden buildings, or fences; or slight and temporary ; as a stake, or a stake aad a few loose stones, intended to be supplied by something of a more permanent character. They serve to point out at the time, to the parties in interest, the bounds of the land conveyed. After these monuments are gone, and such a period of time has elapsed, that no one can be found who remembers to have seen them, or can testify as to their location; uniform continued occupancy, by buildings, fences, or other equivalent indications of ownership, is evidence that the land was located according to the original monuments. These monuments perish; and time sweeps away those who could point out where they stood; actual occupancy therefore, within the period of memory, is the only evidence which can be substituted. A prudent grantee causes posts or pillars of stone to be placed at the corners of his purchase, instead of the stakes referred to in his deed. When that generation is gone, no one can be brought to testify that they were rightfully placed y yet if there has been a corresponding possession, no reasonable doubt can or ought to be entertained of this fact. Of the same character in principle is the evidence arising from fences and buildings. These deductions and inferences are fully justified and required by the general law of evidence ; and it is of great importance to the peace and quiet of the community, and to the security of titles, that they should be applied and sustained.

In 1803, it appears from the deed of Nancy Jlyer to George Tucker, that the Peter Page house was still standing. The next year, when the site of that house could not have been mistaken, the store now owned by the tenant was built 5 and it does not appear that from that time, the title of the tenant, or those under whom he claims, to the whole land covered by the store, has been questioned, until the commencement of this action. Upon this evidence, we are of opinion that the jury would have been warranted, and that it would have been their duty, to have regarded the tenant’s occupancy to have been in conformity with the monuments in the deed to Nancv filler, under which the tenant holds.

If the tenant’s title to the part demanded under the store commenced by disseisin, it would be protected by the statute of limitations ; but his case does not require the aid of that statute, and it is therefore unnecessary to give an opinion upon this point.

With regard to that part of the land for which this action is brought,' which is not covered by the store, the tenant sets up no interest whatever in the moiety claimed by the demandant. It is insisted however that as the tenant has pleaded the general issue, and it appearing that he holds a part as tenant in common, the demandant is entitled to judgment. The demandant, having made out his title, would have had a right to a verdict and judgment under this plea, but for the statute of 1826, ch. 344. Prior to that statute the tenant, by the general issue, admitted himself to be in the seisin and possession of the land demanded. The statute expressly declares that this plea shall no longer have this effect. Before the new law, a judgment in favor of the tenant was, as between him and the deman-dant, evidence that he had title to the land demanded. Litigation between the parties was thus closed, and the party prevailing had a record title, which parties and privies to' that judgment could not controvert, except in a higher species of action. Whether it was wise and expedient, by a change of the law, to render judgments in real actions less certain and effectual, it is not our business to inquire. A judgment for the tenant is not now necessarily evidence of title in him. He may have prevailed, because he was never in possession of the land demanded. It may be well in practice, whenever this is the case, that this fact should appear in the verdict. But if it does not, there must be some other mode, by averment and proof, to protect the demandant’s title, where there has been no recovery against him upon the merits.

It is insisted by the counsel for the demandant, that the law of 1826 cannot apply to tenants in common ; and that when a tenant in common is sue'd, he should by his plea set out his own proportion, defend as to that, and disclaim the residue. It may still be necessary and proper for him to do this, when the whole land is demanded. But when the action is brought for a proportion, which he does not claim, and which does not- affect his own estate and interest, and he pleads the general issue, we cannot, consistently with the statute of 1836, hold him to have admitted himself by his plea to be in possession of the part or proportion of the laud demanded. Tho de-mandant must be held to prove that the possession of the tenant is exclusive, or that ho claims to exclude the demandant from the enjoyment of his proportion. Proof that the tenant is in possession of a proportion not demanded, and which is consistent with the demand-ant’s claim, is not sufficient to maintain the action.

It remains to be determined whether such proof has been exhibited. The deed of George Tucker to the tenant, of November 1818, was merely a release. It does not appear that either party was in possession, or that the tenant claimed or exercised any act of ownership under it. The erection of a small piece of fence on one of the lines, was no invasion of the demandant’s rights, nor is it evidence of exclusive possession. If one tenant in common in possession deny the right of a co-tenant, it may be evidence of ouster. What was said by the tenant to the demandant? cannot he go construed. It was a guarded reply to a question put by the demandant, having no tendency to affect or impair rights on either side.

It being the opinion of the court that the demandant is not entitled to recover, the verdict is set aside ; and according to the agreement ®f the parties, a verdict is to be entered for the tenant.