Noyes v. Dyer , 25 Me. 468 ( 1845 )

The opinion of the Court was drawn up by

Shepley J.

The proprietors of township numbered three conveyed a tract of land, including several lots, to John Lee, by deed executed on August 27, 1802, and recorded June 22, 1805. For the purpose of deciding the questions presented in this case, that conveyance may be considered as including the premises demanded in the action. And the demandant as having regularly deduced his title from it. The same proprietors, by deed executed on November 14, 1808, and recorded on the 28th of the same month, conveyed to Francis Bakeman a tract of land particularly described by metes and bounds; and the jury may have found, that those bounds included between thirty and forty acres of the land previously conveyed to Lee. Bakeman appears to have been upon a part of the tract of land conveyed to him as a settler, when he purchased; and to have continued to reside upon it more than twenty years, and until his decease; and to have cultivated and improved during that time a part of the tract near his residence, which was about a mile and a half from the premises demanded. They are on the southerly end of the tract conveyed to him, and have not been improved or wholly surrounded by fences. The southwest corner bound of the Bakeman tract was a fir tree at the head of the water. According to the testimony there had been a line designated by marked trees, extending half a mile or more east from it, for twenty-eight or nine years, to which Bakeman had claimed, and by which he had directed a person, who occupied land on the southerly side of it, to be governed. And there was a fence on that line extending east from the stump of the tree seventy or eighty rods. A witness stated, that he had seen Bakeman cutting on the premises two or three times. The bounds of the lots conveyed to Lee were ascertained only by reference to a plan of the township, by which the premises would appear to have been included in one of those lots; but no marked lines or bounds of the lot were found upon the earth northerly of the line, to which Bakeman claimed. After the decease of Bake-man, his widow and administratrix continued his occupation, until by virtue of a license to sell for the payment of his debts she conveyed a part of his lands, including the premises, to the tenant.

In behalf of the tenant it was contended, if the demandant should appear to have the better title by the conveyances, that the title had been destroyed by a disseizin, continued for more than twenty years.

The counsel for the demandant contended, that the jury, from the facts presented in the cause, would not be authorized so to find. They now insist, that the residence and improvements of Bakeman were on land, to which he had an undisputed title, and that they would not, therefore, give notice to any one, that he claimed to own further than such title extended.

That the description of the tract of land conveyed by his deed was so indefinite, that persons owning adjoining lands would not be informed by the record of it, that it included any of their lands.

And that they could not be expected to examine the records to ascertain whether a person residing on his own land had included in his conveyance a part of their lands.

It was decided upon full consideration, in the 'case of The proprietors of the Kennebec Purchase v. Laboree, 2 Greenl. 275, that a person, who enters upon a tract of land under a deed duly registered, from one having no legal title, and continues openly to improve a part of it for a sufficient time, thereby obtains a title by disseizin to the extent of the bounds of his whole tract, unless there be other controling facts. Such has since continued to be the received and settled law in this State.

The position first insisted upon to distinguish this case arising out of the fact, that Bakeman’s residence and improvements were on land, to which he had an undisputed title, cannot be admitted to have that effect. He had apparently reason to conclude, when he purchased, that the proprietors had as good a title to the demanded premises, as they had to any portion of the tract included in his deed. He did not purchase of them a lot or lots designated by any number or plan. The record of his deed was legal notice of the extent of his title. If such a state of facts were admitted to destroy the effect of it, the result might often be, that one, who had purchased a tract of land and had continued to reside upon and to cultivate a part of it for more than twenty years, under a recorded deed, might afterward be deprived of any part of it, which had not been surrounded by fences or improved more than twenty years.

Nor can the objection prevail, that the bounds named in his deed were too indefinite to give notice of the extent of his claim. The plan may place the head of the water, where the demandant would desire to have them; but to ascertain where the head of the water named in the deed was, one must examine the condition and state of the water upon the earth. And according to the testimony, the fact might thus be ascertained with little difficulty; as well as the position of the fir tree at the head of the water: the stump of which is said to be still standing there. No such tree appears to have ever stood at the head of the water as indicated by the plan. From this double designation of the southwest comer bound the line extended east; and it would not seem to have been very difficult to have ascertained and traced it upon the earth. The position of the birch tree, named as the first bound at the northwest corner of the tract, might not be ascertained without first ascertaining the position of some other bound named in the deed, and tracing the line back from that to the first bound; but it could thus be made certain.

Nor can the other objection, that a person under the circumstances named could not be expected to examine the records, prevail. To admit it to be valid would be to impair very materially the effect of a notice by the recórd. Resides, the objection assumes, that Baketnan would be well known, without any examination to ascertain the position of the bounds of his tract on the earth, to have a better title to all other portions of it, than to the premises ; and the testimony does not appear to authorize such a conclusion.

An objection was also made to the introduction of the deed made byBakeman to Perkins, on October 12, 1820, conveying in mortgage and with the like description the same tract of land. Mr. Starkie, speaking with reference to the possession and enjoyment of disputed property, states, that “ written instruments, by which a dominion over such property was exercised,” are admissible to explain the nature of such possession and enjoyment. 1 Stark. Ev. 66, (Mete, ed.) The acts and declarations of a person, while in possession of an estate, may be received in evidence to explain the nature and extent of his claim. Moore v. Moore, 21 Maine R. 350; Shumway v. Holbrook, 1 Pick. 116; Van Deusen v. Turner, 12 Pick. 532 ; Jackson v. McCall, 10 Johns. R. 380. The deed would seem, therefore, to have been correctly admitted to show, that Bakeman claimed to be the owner, and that he performed an act of dominion over the whole tract included in his deed.

Judgment on the verdict.