Wheeler v. Hatch , 12 Me. 389 ( 1835 )

Weston C. J.

— The subscribing witness to the deed in question, has no distinct recollection of its execution, or of attesting it; but she says the handwriting resembles hers, and from that and other circumstances, she is strengthened in the opinion, that she did witness the execution of the deed. This is as much as most witnesses can say, after many years have elapsed, and when the execution was unattended with circumstances, which might fix it in the memory. No suspicion whatever has been thrown upon the deed ; and all the witness did say, is calculated to produce in the minds of others, as it did in her own, that she saw it executed. It warranted the reading of the deed to. the jury, to whom it belonged to pass upon the fact. As the parties, however, have desired to refer that question to the Court, we do not hesitate to state, that the deed appears to us to be sufficiently proved, in the absence of all counter proof, and there being no suggestion of fraud.

With regard to the strip of land, seventy feet long and two wide, it is not pretended that the defendant was seised when she made her deed. And we hold it to be equally clear, that she was not seised of the triangular piece in controversy. For, although she was in possession of that piece, it appears that she did not claim it as her own. She has shown no title to either; and as both were included in her deed, her covenant of seizin is broken as to them, and the plaintiff is entitled to judgment for such a sum in damages, with the interest of it, as the value of those pieces, compared with the whole consideration paid, bears to the whole purchase.