Parsons v. Copeland , 33 Me. 370 ( 1851 )

Shepley, C. J.

— The title of the petitioner must depend upon proof, that he performed labor by virtue of a contract, upon a building erected by Copeland and Buswell, whereby a lien upon the estate for its payment was created under the provisions of the statute, chap. 125, sect. 37, 38.

He appears to have commenced a suit against them on July 29, 1847, and to have caused the estate to be attached, and to liave recovered judgment and caused an execution issued thereon, to be levied upon an undivided portion of the estate.

The respondent exhibits a conveyance of the whole estate from Copeland and Buswell with Lydia White to himself, made on December 8, 1846.

To prove that he performed the labor and thereby acquired a lien upon the° estate, before it was conveyed to the respondent, the petitioner introduced a copy of the record of a suit commenced by the respondent against his grantors.

The counsel for the respondent insist, that it is not legal testimony.

Although it is not the record of a suit between the same, parties, it may be legally introduced to prove the declarations or averment made by the then plaintiff and present respondent respecting the rights of the petitioner. Ellis v. Jameson, 17 Maine, 235; Cragin v. Carleton, 21 Maine, 492; Heane v. Rogers, 9 B. & C. 577; 1 Greenl. Ev. sect. 195, and sect. 527, a.

The counsel for the petitioner insists, that the effect of the averments contained in that declaration, is to estop the respondent from denying their truth.

Parties and privies only are bound by estoppels, which must be mutual.

That record constitutes no muniment of title, and the petitioner was no party to it. It does not therefore operate by way of estoppel. Those averments operate only by way of admission of the petitioner’s rights. They are full to the effect, that the petititioner had acquired a lien upon the estate for the payment of his labor. There is no proof introduced by the respondent, that they were made under any misapprehension of his legal rights; or tending to explain or contradict them.

The report of the presiding Judge made in that case, was but an exhibition of the testimony introduced. It did not contain any declaration or admission made by either party ; and it is not admissible as testimony in this case.

The declaration in the action of the petitioner against Copeland and Buswell contained averments, that the labor was performed by virtue of a contract upon a woolen factory, according to an account annexed, which appears to have been for 157J- days work, commencing on May 5, and ending last of November, 1846. The declaration does not state, that payment was to be made at a future day or time, or that it was not to be made as soon as the labor had been performed.

It does not therefore appear of record, that the petitioner had acquired a title superior to that of the respondent. The petitioner’s title is therefore resisted by an argument alleging in substance, that if allowed to be effectual, no purchaser can in such cases ascertain by the records, whether he can acquire a good title to an estate ; that, if parol evidence may be admitted to prove any fact necessary to make out a title to real estate, there can be no safety in taking titles and conveyances of it.

If the effect should be, that the records cannot be so much depended upon for information respecting titles, as they formerly were, this Court cannot refuse to give effect to a title acquired according to the provisions of a statute. The legislature must determine how far it is expedient to authorize titles to real estate to be acquired without requiring all the facts necessary to make out such titles to be exhibited by the records.

This Court can only explain and apply the enactments of the legislative department, when they are made in conformity to the provisions of the constitution. It cannot determine that no fact necessary to malte out a title to real estate shall be established by parol testimony.

The statute provides, that “such lien shall continue in force for the space of ninety days from the time, when such payment becomes dueand that the benefit of it may be secured by attachment within the ninety days.

There is no provision, that the declaration shall state, whether any time for payment was allowed; or the time “ when payment becomes due.” It must be proved therefore like any other fact, by any legal testimony.

No other objections to the title of the petitioner are presented. Judgment for partition.