Morrison v. McArthur , 43 Me. 567 ( 1857 )

Cutting, J.

The defendant, by his deed of April 11, 1853, conveyed to the plaintiff one undivided eighteenth part of the eastern half of township numbered three, in the eighth range of townships, on the Sebois stream, in the county of Penobscot; and therein covenanted that at the time, he was lawfully seized in fee of the premises. But it appears that prior to the deed, Josiah Towle and others, being owners in common and undivided of twenty-five-thirty-sixths parts of the same half township, had, by the statute process of partition, caused their proportion to be set off by metes and bounds, to be lield by them in severalty. Those proceedings, being final and conclusive as to the proprietors residing in this state, affected a severance of the common property, so that the defendant’s interest attached only to the residue of the half township after the separation — increasing in proportion as it diminished in quantity. Thus, for instance, after deducting Towle and others’ interest, there would be remaining eleven thirty-sixths parts in one body, which, as between the defendant and his remaining co-tenants, may be represented by the integer eleven, of which he would be entitled to two eleventh parts, and of so much only seized in fee at the date of his deed to the plaintiff. Consequently he was not seized of that portion set off to Towle and others, and there was a breach of covenant in that particular.

The testimony offered by the defendant and excluded by the ruling was immaterial. It was an attempt to show faithfulness on the part of the commissioners in the discharge of their duties, which the law will infer until the contrary has been made to appear. According to the agreement of the parties the defendant is to be defaulted, and the court are to assess the damages, which may be more or less, as the facts shall be disclosed at the hearing. It seems that the deed was made by the defendant in ignorance of the division. He manifestly intended to convey all his interest in the half township. If at the hearing he should tender a deed to that effect it might be worthy of consideration how’ far it should be received in reduction of damages.

Defendant defaulted.