Brackett v. Hayden , 15 Me. 347 ( 1839 )

After a continuance for advisement, the opinion of the Court was drawn up by

Weston C. J.-

If the defendant, Whitney, had a lien, for the labor he had bestowed upon the clapboards in controversy, if he had not otherwise been paid, he might deliver them to the plaintiff without insisting upon the continuance of that security. If this was done, the lien would be dissolved. And this was done. The clapboards were pointed out by Whitney, to the plaintiff, and he took possession of them, and removed them, with the knowledge and assent pf Whitney. This was a sufficient delivery, to vest the entire property in the plaintiff. If Whitney would have re-* served his lien, if it existed, he should have told the plaintiff, that he might cross pile them, for the purpose of seasoning, but that he must retain the possession, until his claim was discharged. But he surrendered the clapboards to the control of the plaintiff, without any such intimation.

Title in the plaintiff being established, the burden of proof was, thrown upon the defendants, to show affirmatively in Whitney a new title, under the collector’s sale. Of this there was qp evidence whatever, except what was mere assumption, under the defendant, Hayden. This was clearly insufficient, and so the Judge instructed the jury.

Exceptions overruled.