Kinsman v. Greene , 16 Me. 60 ( 1839 )

The opinion of the Court, after advisement, was drawn up by

Shepley J.

In the grant from the Commonwealth to Barnard and others in 1792, there was a reservation of four lots for public uses, “ to be laid out near the centre of said township,” one of which was for future appropriation. The premises now in controversy are upon lot No. 17, adjoining the lot on the north west corner of the township. In the case of Porter v. Griswold, 6 Greenl. 430, a doubt was expressed, whether the language used in deeds of this description would amount to a legal reservation of the title. Considering the situation of this lot there may be difficulty in regarding the title as remaining in the Commonwealth, although she might well receive it, when assigned to her for that use. Supposing the title to the lot to have passed to the grantees could they so assign it to the Commonwealth in 1820, that she could convey it to the plaintiff? If so it is immaterial to decide, whether or not the title remained in her by the reservation. The improvements made by McDonald do not appear to have been of a character to affect the rights of any one. The occupations of Moses Greene, and of his widow and children, appear to have continued to about the year 1817 when she removed; and Asa Greene a son of Moses continued to occupy until 1823 or 1824. On the 24th of October, 1810, he took a lease of the premises, of the agents of the proprietors, obliging himself to improve the same until the proprietors should sell; and then to deliver the same up with all improvements made thereon. He was in possession in 1820, when the proprietors assigned this land to the Commonwealth. They were then seized, their tenant being in possession, and could well convey the title. It is objected, that when he took the lease another was in possession, but that would not destroy the effect of the lease when he came into possession. He could not set up his title against the title of his lessors. The assignment being effectual to pass the title to the Commonwealth, her title then became good, if she had before parted with it. Having the title in 1820 and not being liable to be disseized, she could convey a good title to the plaintiff in 1835.

Whether a person can be considered as holding lands by virtue of a possession and improvement against the State may well be questioned, but it is not now necessary to decide. The deed from the Commonwealth to the plaintiff conveys only all its right, title and interest in the lot, and is without covenants. And considering her usual regard for settlers as exhibited in her conveyances to the grantees and others, she may be understood as designing to allow any settler to set up his claims in the same manner as he might have done, if the title had been in the hands of a private person. And the plaintiff cannot under such a title interpose the rights of the State when she did not choose to do it, against the claim of the defendant for his improvements.

Judgment on the verdict.

Let the set off be made agreeably to the motion on file.