Russ v. Gilman , 16 Me. 209 ( 1839 )

The opinion of the Court was by

Emeey J.

The true question in this case is, whether the plaintiffs or defendants have the better title to the pi-emises defended.

Notwithstanding the levy of Ulmer on the portion of the dwel-linghouse built by Holyoke, we do not discover in the report, that the building had, in Holyoke’s hands, any character but that of personal property. The levy made by Henshaw against Holy-oke, and the levy by Ulmer against Henshaw, both effected on the 14th day of July, 1813, might, if no objection could be introduced against them, have given a seizin to Ulmer, provided Holyoke and Henshaw had the legal title. Ulmer died about the 16th of March, 1826. From the time of his levy to near the time of his death, he collected one third of the rent of the house which was on a lot of land in Bangor, 50 feet on Exchange Street, and 100 feet back. By the disclaimer, thirty feet only of the premises are in controversy. If the testimony of William Rice were admitted, it would only prove, that about 1809, a dwellinghousc was built upon the premises, two thirds by William & Charles Rice, and one third by Holyoke. And that before and at the time of tbe levy, Abner Taylor occupied the house, and continued to occupy as tenant for one to one and a half years after the levy, and paid his rent two thirds to Rice, and one third to Holyoke, and to Ulmer’s agent. We do not perceive, that tins evidence would materially change the case. But Mr. Rice appears to be a warrantor to one of the defendants against persons claiming under said Rice.

The defendant exhibited a title from the Commonwealth of Massachusetts, dated March 2, 1802, to Stetson, French and Lapish. A deed dated February 20, 1815, from William & Charles Rice, to Nathaniel Freeman, conveying two thirds of the 30 feet in controversy. On the 2d of Sept. 1816, Stetson, French and Lapish convey to Call, Treat, and William & Charles Rice. But Call had previously, on the 23d of June, 1815, conveyed all his interest in the land in question to William Rice and Charles Rice, “ being, as the deed says, part of the lots I hold by bond from Stetson, La-pish and French, in common with the said William & Charles, and Joseph Treat, with all the buildings, privileges and appurtenances thereunto belonging.” On tbe 11th of July, 1818, Treat conveyed his interest to William & Charles Rice. The Rices on the 26th of Nov. 1819, conveyed one third of the contested estate to the defendant, Gilman, and to him the executors of the will of Freeman, conveyed the remaining two thirds of the thirty feet on the 1st of May, 1828; which made Gilman the owner of the whole thirty feet, unless the plaintiffs can hold by such title as they bring before us. One third of tbe thirty feet has passed by mesne conveyances, from said Gilman to Rice, tbe other defendant. No disseizin has intervened to prevent the operation of these deeds.

Tbe defendants insist, that to the validity of the return of tbe levy on the execution of Henshaw against Holyoke, there are fatal objections. The principal one is, that the return states, that the appraisers were reputable freeholders, but does not state, that they were disinterested and discreet freeholders of the then county of Hancock. And that in the return on the execution of Ulmer agaHnst^Henshaw, it is not stated, that the appraisers were freeholders of that county.

Unless this be alleged in the return, we must adjudge the levy void. Because it is a rule of law, that when a statute title is attempted to he gained to real estate, every requisite of the statute must be substantially shewn in the return. The cases cited by the defendants and their counsel, fully sustain their objections. And we must overrule’jhe motion to amend the return, at the distance of nearly 26^years. According to the agreement of the parties., judgment must be rendered for tire defendants.