Williams v. Kinsman , 21 Me. 521 ( 1842 )

The opinion of the Court was drawn up by

Tenney J.

— The demandants were disseised more than six years, before the commencement of this suit, and buildings and improvements have been made on the premises since such disseisin, by those claiming adversely to the owner. The question before us is, whether the possession has been in the tenant, and continued by him, and those occupying under him, in such a manner, that he is entitled to hold those improvements by virtue of the statute of 1821, c. 47, $ 1. In March, 1828, he claimed to own the land by giving to Perley a bond, to convey the same to him ; under which Perley went on, and made improvements, retaining the possession till Nov. 1830, at which time he sold all his rights, and upon the sale transmitted them to the tenant. This certainly gave the purchaser advantages, equal to those which he would have acquired, if he had himself made the improvements, claiming to be the owner of the land. From that time Penney and Norcross as his servants occupied the land till the bond was given to McKecknie, to convey on the fulfilment of certain conditions, which have not been pen formed. Under this bond McKecknie occupied the land, and made further improvements, which legally belonged to the tenant as between him and McKecknie. The demandant treats the tenant as claiming a freehold estate ; this is admitted by the tenant in his pleadings. McKecknie has always occupied in submission to the tenant, and has no legal interest'in the premises. In whom then is the possession, and to whom belong the improvements ? The value of the land has been increased under the agreement made between the tenant and McKecknie, and we are unable to see how the terms of that agreement, can effect the rights of the parties now in controversy, for it is one to which the demandants are strangers, and it is immaterial to them, whether the contract be, that the improvements should be made by a servant of the tenant, or under a bond to convey the land, on certain conditions,1 the non-performance of which have worked a forfeiture on his part. The possession of McKecknie was-virtually that of the tenant, and we see no error in the instructions.

Exceptions are taken to the ruling of the Judge, that permission was given by the tenant, to prove by parol the contents of the bond given by him to Perley, it having been given up to the obligor, and there being no other proof of its loss. It is unnecessary to consider, whether this ruling was proper or not, as it appears by the case, that the tenant did not avail himself of that permission, and the contents of jthe bond were not disclosed under that ruling.1

Judgment on the verdict,