Jewell v. Harding , 1881 Me. LEXIS 51 ( 1881 )

Peters, J.

The defendant claims title to the land in question by an instrument purporting to be a deed, not under seal.

He contends that the instrument contains a declaration of a dry, naked or passive trust, such as will prevent a recovery for possession by the trustee against the cestui que trust. He relies upon the following cases: Warren v. Ireland, 29 Maine, 62; Sawyer v. Skowhegan, 57 Maine, 500; French v. Patterson, 61 Maine, 203. Blake v. Collins, 69 Maine, 156. We do not assent to the proposition. Tbe doctrine of the cases cited is not admitted by many courts. It should be cautiously applied by ourselves. There was no design to declare such a trust. It was merely an attempt to transfer a title by an uncompleted deed. The purchaser has, at law, no right to possess and enjoy the property longer than the seller permits. If the point prevails, it virtually abolishes the distinction between sealed and unsealed instruments. It was held in McLaughlin v. Randall, 66 Maine, 226, that land in this State cannot be conveyed by a written instrument without a seal. The reason for requiring seals to deeds is forcibly stated in an early case in New York, thus: ■" This venerable custom of sealing, is a relic of ancient wisdom, and is not without its real úse at this day. There is yet some degree of solemnity in this form of conveyance. A seal attracts attention, and excites caution in illiterate persons, and thereby operates as a security against fraud. If a man’s freehold might be conveyed by a mere note in writing, he might more easily be imposed On, by procuring his signature to such a conveyance, when he really supposed he was signing a receipt, a promissory note, or a mere letter.” Other reasons could be added. Probably less errors occur in writing deeds than in other agreements, for the reason that the forms are so much followed and well known. Jackson v. Wood, 12 Johns. 73.

The defendant is not without remedy. He has an equitable right. The instrument he claims under is in equity a deed. In equity, the seller can be made to reform the deed, unless sufficient cause can be shown to excuse it. Wadsworth v. Wendell, 5 Johns. Ch. 224. Jones Mort. (2d ed.) § 166, and cases there cited.

The defendant, however, was not liable for mesne profits before he had notice by suit or otherwise to quit. He went into possession under an instrument which the parties at the time supposed to be a valid deed. It is a general rule, .that where ejectment lies mesne profits are recoverable. The rule does not always apply. There is a class of cases where a person is in possession of land by the consent or sufferance of the owner, who may at any moment enter and oust him; but until that is dono the owner cannot have trespass for the occupation. The defendant went into possession by consent, without agreement or expectation to pay rent. In one sense he became a disseizor. Jewett v. Hussey, 70 Maine, 433. But the owner was disseized by his own consent. He put the defendant into possession, and went himself voluntarily out of possession. There was no attempt to oust the defendant before the date of the writ. Mesne profits accruing after the date of the writ cannot be recovered in this action. Larrabee v. Lumbert, 36 Maine, 440. It is every where held that a claim for mesne profits is subject to equitable defenses. There are both equitable and technical reasons why they are not recoverable in this suit. Larrabee v. Lumbert, 34 Maine, 79; Patterson v. Stoddard, 47 Maine, 355; Shaw v. Mussey, 48 Maine, 247.

No notice or demand prior to the action was necessary. Commencing the action is demand enough.

Motion overruled. H Exceptions sustained, so far as to allow judgment on the verdict for possession, without any recovery of mesne profits.

AppletoN, C. J., VvraltoN, Danforth, Virgin, and Libbey, JJ., concurred.