Poor v. Larrabee , 58 Me. 543 ( 1870 )

Barrows, J.

The several parcels of land demanded in these suits formed a part of the estate of Zadoc French, who died intestate in the spring of 1831, leaving three sons, Ebenezer, George, and Frederic, his only heirs. The demandants claim title under levies made in 1843 upon the several lots in question as the property of Ebenezer and George, to whom Frederic had made a deed, dated April 3, 1833, of all his interest in his father’s estate containing the following clause, “ providing that said (grantees) are to save said Frederic free from all claims harmless on any deeds or conveyances which he may have signed and acknowledged to convey any of said real estate mentioned in this deed.” This deed was not delivered until March, 1836, when it was recorded. But previous to that time, viz., on June 17, 1833, Frederic French had made a warranty deed of one of these lots to parties under whom the present tenant holds.

The tenants, and those under whom they claim, have been in actual possession of the demanded premises since some time in the year 1832, when they entered and forthwith made expensive and permanent improvements, erecting a brick block upon the premises, claiming title under deeds from the administrator of Zadoc French, in which deeds Bulah French, the widow of Zadoc (to whom these with other lots had been assigned in August, 1831, by proceedings in the probate court to set out lior dower against common right), joined for the purpose of conveying or releasing her dower.

Bulah French lived until Api'il 18, 1863. These suits were commenced July 20, 1863, the demandants denying the validity of the administrator’s deeds, and claiming that the tenants cannot be considered as disseisors during the lifetime of Bulah French, whose estate they held by virtue of valid conveyances from her as above stated.

The tenants, or'those whose title, good or bad, the tenants hold, have been in possession of the demanded premises since 1832.

The demandants must recover, if at all, on the strength of 'their own title, and, until they show a title in themselves, they cannot rely upon any defects, real or supposed, in that of the tenants.

They claim under attachments made by their grantors in 1837 (long after the tenants or their grantors were in possession of these lots), of all the right, title, and interest which Ebenezer French and George French respectively had in and to any and all real estate in the county of Penobscot.

Their levies were not made until 1843. If their attachments were valid and duly preserved, levies regularly made in pursuance thereof would transmit to the demandants’ grantors such title as Ebenezer French and George French respectively had at the dates of the attachments in 1837. But if their attachments were invalid, they would acquire only such seisin and title as the debtors, Ebenezer and George respectively, had at the dates of the levies. Before the levies were made, viz., on the 5th of April, 1842, Ebenezer French and George French had been severally decreed bankrupts upon petitions filed February 25, 1842, under the statute of the United States passed in 1841 to establish a uniform system of bankruptcy, and all their right, title, and interest in real estate had. vested in their assignees, subject to such liens as had been created by valid subsisting attachments. It becomes necessary to examine into the validity of these attachments. The demandants’ grantors acquired nothing by their levies unless they can be made to hold from the date of the original attachment in 1837; for, when the levies were made, the debtors had no seisin either in fact or in law. The tenants’ grantors had the actual possession, and whatever legal estate Ebenezer and George may have had before their bankruptcy, it passed at that dále to their assignees, unless prevented by the existence of a valid attachment.

It is argued for the demandants that the tenants cannot set up an outstanding title in a tliird party under whom they do not claim, to defeat the action. But it is clearly competent for the tenants to disprove the seisin of the demandants, as alleged in their writ, by showing that the party under whom they claim had neither title nor possession at the time of the conveyance under which they claim. Stanley v. Perley, 5 Greenl. 369; Chaplin v. Barker, 53 Maine, 275.

Looking now at the writ against Ebenezer French, we find it contains, in addition to a count upon a promissory note, a general money count without any specification of claims to be proved under it. It has been decided that an attachment of real estate made upon such a writ is invalid and of no effect. Saco v. Hopkinton, 29 Maine, 268; Osgood v. Holyoke, 48 Maine, 410.

Nor can it avail the demandants that the attachment was made a few months before the passage of the statute of 1838, c. 344, under which, as revised but not changed, in 1841, 11. S., c. 114, § 33, the decisions above referred to w*ere made. The suit was still pending when the statute was passed and when it was embodied in 'the Revised Statutes of 1841. The attaching creditor could have no vested rights to be affected by the act declaring all attachments thus made to be void, until he had perfected his lien by levying his execution. Until that was done, the remedy by attachment’ on mesne process was entirely within the control of the legislature which created and might lawffully modify or abrogate it according to their own discretion.

The consequence is, that the demandants show no title to the undivided half of these lots which they claim under Ebenezer French, because the proof of seisin which they offer is rebutted by the proof that Ebenezer French had neither title nor possession when the demandants’ grantors took their statute conveyance from him.

But we fail to see any valid objection to the proceedings under which the demandants claim to have acquired the title of George French in these lots. The attachment in the suit against him was properly made and preserved and perfected by a seasonable levy, so> that whatever interest he had in the property at the date of the attachment in 1887, finally vested, not in his assignee in bankruptcy, but in the levying creditor whose title the demandants hold.

The allegation that the attachment was lost by reason of a failure to continue the action for judgment at the June term, 1842, cannot be considered as sustained. It is true that the docket of that term does not now show a written entry of a continuance for judgment ; but the cabalistic marks by which clerks are wont to signify those continuances are frequently hastily made in pencil, and are easily effaced; and the non-appearance of thorn cannot countervail the pregnant fact that the cases were regularly transferred to the docket of the next term, supported by the record of judgment, which recites a continuance from term to term and must, under these circumstances, be deemed conclusive evidence that the case was duly and regularly continued.

It becomes necessary, then, as the demandants have shown an apparently good title to George French’s part of the land, to examine the title of the tenants, and ascertain whether or how far they have maintained their right to a judgment in their -favor by proving a better title in themselves. They claim title by virtue of their long possession and improvement of the premises, and under and by virtue of the deeds, before referred to, from the administrator of Zadoc French and from Bulah French, to whom these lots had been assigned as part of her dower.

. They cannot, under these circumstances, make good a title by possession.

They held the life-estate of Bulah French by legal conveyances from her, and these suits were commenced very shortly after hei decease.

While Bulah French lived they were rightfully in possession under their deeds from her, and that possession must be regarded as held under the legal title thus derived, and consequently is not and cannot be adverse to those claiming reversionary rights. Varney v. Stevens, 22 Maine, 331; Austin v. Stevens, 24 Maine, 520; Moulton v. Edgecomb, 52 Maine, 31.

It is not competent for tlie tenants in this suit to set up any alleged irregularities in the probate proceedings by which these lots were set out as dower to Bulah French, whose life-estate in the premises they have enjoyed under conveyances from her. They seek now to do so in order to place themselves in the position of disseisors as regards the title of the heirs, and to obtain the benefit of the statutes of limitation which we shall presently notice.

But that assignment was duly accepted by the court of probate. Neither the widow nor the heirs interposed any objection to its acceptance, or claimed any appeal from the decree of the court of probate confirming it, as either party might have done if there were any irregularities in the proceedings by which injustice was done them. They must bo conclusively deemed to have assented to and accepted the assignment. Even a parol assignment, if assented to and accepted, would be held binding upon the parties. An assignment by moans of proceedings in the court of probate, when not appealed from, is no less so. Such an assignment is only one form of a setting out of dower by the heirs, the judge of probate having no jurisdiction to appoint commissioners where the right of dower is disputed. This very assignment has been adjudged by this court conclusive upon the widow in French v. Pratt, 27 Maine, 396. It is equally so upon her grantees, and would undoubtedly have been held to be so upon the heirs and those claiming in privity with them, had they sought to enforce their claims during the lifetime of Bulah French. It was a matter of which the probate court in Penobscot county indisputably had jurisdiction, and the judgment of that court not being appealed from is final and conclusive upon all parties to it and their privies. These tenants took from Bulah French conveyances, which they present here among their muniments of title. It is not for them to say that she had no legal estate when they have so long enjoyed it under her grant.

Nor does the general statute of limitations bar the demandants’ right to recover. They are within the exception made by clause third of § 8, c. 105, R. S. of 1857, and R. S. of 1841, c. 147, § 8, clause third. The statute of limitations does not begin to run against a remainder-man or a reversioner during the continuance of the particular estate. Durham v. Angier, 20 Maine, 242; Mellus v. Snowman, 21 Maine, 201.

Neither is the case within the purview and effect of the statutes which have all along limited actions brought to try the title to lands sold under a probate license to the term of five years. Statutes of 1821, c. 52, § 12 5 R. S. of 1841, c. 112, § 18 ;"r. S. of 1857, c. 71, § 28.

The title of the tenants under the deeds of Zadoc French’s administrator must prevail, unless it is made to appear that the sale was not made within the year during which the administrator’s license to sell was in force. If the sale was made within the year, the resort "to the statute is unnecessary; if not so made it is useless ; because a sale, made after the license has expired, cannot be said to be made under such license, and it is only to sales made under such license that the provision applies. Chadbourne v. Rackliff, 30 Maine, 360.

We come, then, directly to the question of the validity of the tenants’ title under , the administrator’s deeds.

The only flaw that is alleged to exist in these conveyances is, that they were not executed and delivered within the year after license to sell was granted to the administrator. He got his license at the June term of this court, which adjourned finally on the 18th of June, 1831. It seems to be conceded that that was the date of the license. The case finds that he regularly gave his bond, took the oath, and gave the notice of sale required by law, and sold the lots in controversy at public auction on the 14th of June, 1832.

The deeds of the lots demanded in the suits against Larrabee and against Hinkley bear date on that day. But it is claimed on the part of the demandants, that, inasmuch as these deeds, though dated June 14, 1832, the day when the auction sale took place, were not acknowledged by the administrator until July 16, 1832, and January 22, 1833, respectively, the sale was not completed within the year during which it might lawfully be made under the license, and so no title passed thereby.

In Massachusetts, under similar statute provisions, the supreme court decided, in Macy v. Raymond, 9 Pick. 284, that, although the estate had been regularly put up at public vendue and struck off to the purchaser within the year, no title passed by a deed reciting these facts, but bearing date after the expiration of the license.

If this doctrine had not been followed in a series of decisions in our own State, we might feel inclined to question the propriety of adhering to a rule so rigidly technical, and so liable to work positive injustice. But the decision was adopted and acted on by our own court in Marr v. Boothby, 19 Maine, 150 ; Marr v. Hobson, 22 Maine, 321, and Mason v. Ham, 36 Maine, 573. We deem it bad policy to overturn even a questionable decision upon which the title to real estate is made to depend, when it has been long acquiesced in, and many titles have probably been taken and transferred in pursuance of it.

But it still remains to be ascertained whether and how far the decision affects the titles of these tenants.

We start with the rule that it is incumbent on the tenants to show that the administrator’s deeds were executed and delivered before the expiration of his license.

Is the acknowledgment of the administrator to be deemed an essential part of the execution of the deed, and necessary to pass the title ?

Cases are abundant to the point that a deed, though not acknowledged nor recorded, will pass the title to the estate as against the grantor and his heirs. Lawry v. Williams, 13 Maine, 281; Buck v. Babcock, 36 Maine, 491. An acknowledgment by one of the grantors, or something equivalent to it, is required before the deed can be recorded; but ever since the first year of our existence as a State we have had statute provisions authorizing the reception of proof of the execution of the deed where the grantor had died or left the State without acknowledging it; or when, being requested, he refused to acknowledge it; and, in this latter case, if, upon a hearing the magistrate “ is satisfied by the testimony of witnesses that they saw the deed duly executed by the grantor, he shall certify the same thereon,” etc. It seems, then, that a deed may be “ duly executed ” without an acknowledgment, and that the lack of the acknowledgment by the administrator merely, at the expiration of the license, would not defeat the sale if the transfer were in other respects complete. If the administrator had refused to acknowledge these deeds, the grantees might have proved their execution, and then their title would have been perfect against all the world without any further act on the part of the administrator. If the deed was in; feet executed and delivered before the expiration of the license,: the acknowledgment of these facts may bo made by the administrator afterwards, for it was not essential to the making of a good convej-ance between the parties. It was in fact made in season to admit the deeds to record long before George French’s creditor attached his interest in the land; and even had they not been recorded, as the law stood then, the visible change of possession which took place in 1832, followed by the erection of brick stores upon the lots by the new occupants, would have been a sufficient notice to subsequent purchasers or attaching creditors. Hanley v. Morse, 32 Maine, 289; Clark v. Bosworth, 51 Maine, 528.

The question returns, were these deeds in fact executed and delivered before the expiration of the license ? The case is singularly barren of evidence on this point. Setting aside the ingenious arguments of counsel, based principally upon matters which, if they are true, are not made to appear, and looking only at the report, we find ourselves left to the presumptions arising from the exhibition of deeds bearing date before, but not acknowledged until after the expiration of the license. These presumptions arc not remarkably cogent in either direction. Nor do the decisions cited by counsel, somewhat conflicting in their character, lead to any very satisfactory conclusion. Whore there is nothing on the face of the papers or in the evidence to indicate the contrary, the presumption undoubtedly is, that the execution and delivery took place on the day of the date. This presumption is strengthened by a fact agreed to in the case, that the grantees in 1832 entered and erected a block of brick stores on the lots. But the deed to Hinkley was not acknowledged until 1833. It is hardly to be presumed that such an erection of an expensive block would have been made before the grantor had a deed, either actually or constructively delivered, so as to be operative.

The fact that the acknowledgment did not take place till a subsequent day has been variously construed by different courts.

With so little to make the matter certain, we think the more prudent course is that which was taken by our own court in Loomis v. Pingree, 43 Maine, 308, whiek was to read the transaction by the light of the maxim which requires such a turn to be given to all doubtful matters, ut res magis valeat quam per eat; and this curiously enough leads us logically to an opposite conclusion upon the question of fact from that which was reached in Loomis v. Pingree, ubi suqwa.

Assuredly, however, we do no violence to probabilities in presuming that there was at least a constructive delivery of these deeds by the administrator on the day of their date, and that they were left by him for the grantees with the scrivener until such time as .the signature of Bulah French, with whom a separate negotiation was necessary, could be procured. While there is so little that is of a conclusive character, we hold that the presumption as to the delivery may well shift so as to conform to what we must suppose were the intentions of the parties.

The result is, that the tenants show the better title to the whole of the premises demanded in the suits against Larrabee and against Hinkley. But it is clear that the administrator’s deed of the Kimball lot to Frederic French was not executed and delivered within the year; and so, although the tenant, Kimball, offers to prove that the deed was originally drawn and bore date on the day of the auction sale, and that the consideration-money was paid over to the administrator on that day, we feel constrained, by the decisions before adverted to, to hold that conveyance invalid. But Frederic French conveyed this lot by warranty deed to the tenant’s grantors, and that conveyance was duly recorded and also followed by a visible change of possession long before his deed to his brothers of his interest in his father’s estate was delivered; so that the tenants acquired by Frederic French’s warranty deed a good title to the one-third which he held as heir of Zadoc French; for Frederic’s warranty deed of the lot must be held effectual to convey all the interest which he had in the premises at the time it was made. The result is, that the title to the Kimball lot stands thus: The demandants show no title to Ebenezer French’s third, all his interest having passed to his assignee in bankruptcy before the levy under which they claim was made; the tenant shows the better title to Frederic French’s third; the demandants show a good title to George French’s third, and on amending their writ so as to claim one-third in common and undivided would be entitled to judgment therefor, unless the levy would be avoided by the testimony offered by the tenant for the purpose of showing fraud in the making of the levies.

The suggestion with regard to the value affixed by the appraisers to the debtors’ interest would have no force in itself to show fraud; for considering that the debtors’ estate was subject to a life-estate, which has only recently terminated, we see nothing very remarka-, ble in the discrepancy between the appraised value and that which the tenant asserts to have been the actual value of the whole property.

But the tenant goes further and proposes to prove that the appraisers were induced by the misrepresentation of the creditor or his attorney to exclude all the buildings upon the land from the valuation, and to appraise it at less than its true value, on the ground that there was doubt whether the debtor had any interest in the property. We think such interference on the part of the creditor or his attorney, with fraudulent intent (of which it would be for the jui-y to judge), would avoid a levy in the hands of the creditor himself or of any party cognizant of the fraud when he took his title; and we cannot receive the indignant denial of the fact by the demandants’ counsel as conclusive in their favor upon that point. Inasmuch as it appears that one of these demandants was the creditor in interest when the levy was made, and also is the attorney referred to in the tenant’s proffered evidence, the cause must stand for trial to give the tenant an opportunity to make good his assertions in this matter.

If fraud of this sort were practiced, one of the demandants at least was a party to it, and they cannot jointly claim the rights of bona fide purchasers.

The debtor, George French, had an interest in the buildings which had been erected on the land before the levy. The brick store, when it was erected, became and was a part of the realty, and George French had a vested reversionary right in it of which no subsequent legislation could deprive him. Prior to the statute of March 1, 1843, no grantee or assignee of a tenant for life or in dower could acquire a right to betterments as against the reversioner, nor could the passage of that act affect the rights of the reversioners in any improvements previously made.

No good reason is perceived why the tenant should not have the benefit of that act as subsequently reembodied in B. S. of 1857, c. 104, § 23, so far as any improvements made since its passage are concerned. According to the stipulations in the report, the value of these last is to be assessed by the jury unless the parties agree on some other mode of adjustment.

In conformity with the views herein expressed, the disposition of these actions is as follows : in the suits against Larrabee and against Hinkley there must be Judgment for the tenants.

In the suit against Kimball the demandants will be allowed upon such terms as to costs as the judge at nisi prius may deem proper to amend their writ so as to claim only an undivided third part of the premises, and, thereupon, The ease to stand for trial.

Cutting, Kent, Walton, Dickerson, and Tapley, JJ., concurred.