Mitchell v. Persons Unknown , 59 Me. 448 ( 1871 )

Appleton, C. J.

This is a petition for partition of certain real estate in Mexico. The petitioners are two daughters of Zebediah Mitchell. The respondents are his son, Darius Mitchell, and his grandchildren, the heirs of his son, Jonathan Mitchell, deceased.

It is in evidence tliat Zebediali Mitcliell died prior to Nov. 25, 1828, at wliicli date the land in controversy was conveyed to bis widow, Molly Mitcliell. The proof in the case tends to show that the payment for the land thus conveyed was made by tlie widow, with funds derived from the estate of her deceased husband.

On the second day of August, 1886, the petitioners, with Nancy Mitcliell, by their deed of that date, remised, released, bargained, sold, and conveyed and forever quitclaimed “ all right, title, and interest in and to ” certain lots, “ being land that belonged to Zeb-ediali Mitchell, deceased,” to their brothers, Darius and Jonathan Mitcliell. The petitioners each received one hundred and twenty-five dollars as tlie consideration for this conveyance. It is obvious that the parties to this deed must have supposed that it conveyed three-fiftlis of the land therein specified, otherwise there would be no perceivable consideration for -the conveyance. There is no reason given wliy the grantees should pay the grantors three hundred and seventy-five dollars, when the latter had nothing to convey. The deed was undoubtedly made upon tlie mistaken hypothesis that the title to tlie land conveyed had been in Zebediali Mitchell.

This deed was recorded 26th September, 1886. The grantees entered under it, 'and they or those claiming under them have remained in possession from that date to the present time, occupying the land as their own, receiving exclusively the rents and profits and ¡laying the taxes thereon.

This would seem to be a sufficient title. But the objection is made that the legal title was in Molly Mitchell, who died in 1845, and that, therefore, nothing passed by the deed of the petitioners of Aug. 2, 1886. Still the grantees therein named were in possession, occupying the lands in question, claiming title thereto, and holding adversely to all others. On 8th December, 1848, they divided these lands by deeds of release, and subsequently thereto, their occupation was in severalty in accordance with the terms of said deeds, and was open, notorious, adverse, and exclusive, and known to the petitioners.

There is no proof of any actual entry upon tlie land in dispute by either of the petitioners within twenty years. Peabody v. Hewett, 52 Maine, 33. It is true, an action may be maintained by one having a right of entry, by R. S. 1851, c. 104, § 4. But here the right of entry is gone, for twenty-three years have elapsed since the respondents, or those under whom they claim, have been in the exclusive and open, notorious, and adverse possession of the several tracts as conveyed by the deeds of release of Dec. 8, 1848, to which reference has been had. Judgment for the respondents.

L. II. Ludden, for the petitioners. Bolster Wright, for the respondents. Kent, Dickerson, Barrows, and Danforth, JJ., concurred. Walton, J., having formerly been consulted, did not sit.