Hovey v. Woodward , 33 Me. 470 ( 1851 )

Shepley, C. J.

— The plaintiff as an heir at law of Ivor y Ilovey, deceased, claims to be the owner of an undivided part of lot numbered ten in township numbered sixteen in the middle division of the lottery lands. The action is founded upon the statute, chap. 129, sect. 8.

The only evidence produced at the trial, of the title of the deceased to any portion, of that lot, was a copy of a plan of that township as surveyed and lotted by Rufus Putnam, and attested by his signature, with the numbers of the tickets, by which the lots were drawn, and the names of the proprietors entered in columns upon it.

The Act, passed on Nov. 9, 1786, authorizing the sale of fifty townships of land by lottery, prescribed the acts to be performed to convey titles to the prize lots to the holders of the prize tickets.

By the fourth section managers were appointed, who were required to “lay down in a’book, and number the townships and lots as aforesaid,” to publish an account of the numbers and prizes, and to “ return to the Secretary the book and plans aforesaid of the said townships and lots together with an account and list of the numbers and prizes drawn by the respective numbers in opposite columns, fairly entered therein, and sign the same book and annex their seals to their names respectively.”

The fifth section provides, that the Secretary of the State “ shall enter and register in the book so to be returned to him by the managers, against the number of such tickets, and the prize lot it may have drawn, the name of such proprietor,” when the proprietor shall have produced the ticket to him.

The third section provides, that “ such registry shall enure and operate to all intents and purposes as a grant of the same lots respectively, on behalf of the Commonwealth, to the proprietor or proprietors of the tickets so drawing the same, without any other or further deed or writing whatever ; and an attested copy of such registry shall be sufficient evidence of the party’s title to the same.”

The copy of the document produced does not exhibit any such authentication by the managers or any one of them of the book containing the numbers of the lots and tickets ; nor any evidence of an entry or registry by the Secretary of the names of the owners of the prize lots in such book.

There is therefore no copy produced of the document required by the statute, to operate as a grant of the lot.

It is insisted in argument, that the document, a copy of which • is presented, is the only evidence of title, which the owners of lottery lands can produce; and, that to refuse to regard it as sufficient, will deprive them of the means of establishing their titles.

If even such a result were to follow from the exclusion of the testimony, the Court could not receive as conclusive evidence of title, a document unauthorized by law. That would be an assumption of power to establish a title to real estate by any testimony, which it should please to regard as sufficient. If such inability to establish a title to lottery land should be found to exist, which is not anticipated, it might become necessary, that the legislature should determine, what should be sufficient evidence of title from the State of Massachusetts.

It is insisted further, that the defendant is estopped to deny, that Ivory Hovey, sen’r, was the owner of one third part of the lot.

The only foundation on which this position can rest is, that the heirs of John Lord on October 13, 1830, conveyed one third part of the lot to Andrew Peters, describing it as lot No. 10, in township No. 16, in the middle division of the lottery lands, originally drawn by John Lord. Peters conveyed the same to Nicholas Little and others on April 5, 1833, and they conveyed the same to the defendant on Nov. 13, 1842.

There is no recital, statement or admission in any one of these conveyances, that Hovey was an owner of any part of the lot. By denying the title of Hovey the defendant is not obliged to contradict or to deny any fact stated in his own conveyance or in those, from which his title was derived. Nor was Hovey or any one of his heirs a party to any of these conveyances ; and estoppels must be mutual. There is, therefore, no foundation for the position.

It is not necessary to consider whether the admission or exclusion of testimony or the instructions in relation to damages were correct, for the plaintiff could not have been aggrieved by them.

The motion to set aside the verdict cannot prevail, for the plaintiff exhibited no legal evidence of title in himself.

Exceptions and motion overruled, and judgment on the verdict.