Jameson v. Emerson , 82 Me. 359 ( 1890 )

Haskell, J.

Bill in equity to remove a cloud from the title of land situated in Lincoln, Penobscot county.

The plaintiff is in possession and claims title under a levy made in 1850. The defendant under a release from True & Hayward, made in 1884, to whom the judgment debtor in the levy, under which plaintiff claims, quit-claimed by deed with special covenants of warranty, etc., in 1848.

The decree below found that if the quit-claim deed to True & Hayward was ever delivered, that it could only have been given as security for a debt that was afterwards paid. It is now contended that the finding is not supported by the evidence, and should be reversed on appeal.

Charles Hayward testifies that he and John True, under the firm of True & Hayward, did business in Bangor from 1843 to 1856, and during that time furnished Fish & Perley, lumbermen, with supplies; that Fish lived in Lincoln, and Perley in the Province; that they became embarrassed in 1847 or 1848, and were indebted to True & Hayward for supplies to the amount of $1,500 or $1,800; that the books of that firm were destroyed by the fire of 1869, and that he testifies wholly from memory. He says, in substance, we were informed that Fish & Perley were in a failing condition, and Fish gave us the firm note for all that was then due us, $1,600 or $1,700. We sued this note and attached their lands in Aroostook county, and took them on execution in full satisfaction of our debt. We never had any other claim against Fish & Perley, so far as I know. I feel confident that we did not. I never knew that‘we had dealings in lands in Lincoln, and so far as I remember, we never purchased of Fish & Perley lands in that town. “I have no recollection of True & Hayward or either of us, or Mr. True’s heirs (Mr. True being dead) owning any lands in Lincoln, from Fish & Perley after their failure.” I always had charge of the books of the firm of True & Hayward, and kept them after Mr. Time moved to Portland, until they were burned in 1869. Never, to my knowledge, did the firm of True & Hayward exercise any ownership over lands in Lincoln that were conveyed to us by Fish & Perley or either of them.

About January 1884, Mr. Sprague Adams called and informed me that True & Hayward, by reason of inaccurate surveys, held the record title to certain lands in Lincoln that rightfully belonged to Mr. Emerson, the defendant, and asked if we had any claim upon them, and I told him no. He then asked if I would give a deed of them. I told him yes, and volunteered to get the deeds signed by Mr. True’s heirs, and did so. I told him that I had no moral right to lands in Lincoln. We received no consideration for the deeds.

It was proved that the plaintiffs and their grantors had held control of the lands in dispute since 1850, and treated them as their own, until this controversy arose, less than six years ago. There was other evidence bearing upon the issue ; and we think the court below might well hold defendant’s title under the deed of Fish to True & Hayward to be invalid. There is little, beside the presumption from lapse of time, in favor of that deed. The original has not been produced. The only surviving grantee never knew of it, until told of its existence in 1884, and he then said that he had no moral right to any land conveyed by it, and released his interest as a matter of favor — little supposing that he was parting with title to a very large tract of land, of great value, as a mere favor to a stranger. At any rate, the evidence does not show the decree below to have been clearly wrong and, therefore, fails to overturn it. Young v. Witham, 75 Maine, 536 ; Paul v. Frye, 80 Maine, 26.

It is contended, as the record title was not in the judgment debtor at the date of the levy, that nothing passed thereby. If this be so, the objection has been cured by deeds introduced since the appeal, showing a conveyance from the judgment debtor in aid of the levy.

It is contended that defendant has acquired title to a parcel of the premises in dispute by disseizin, and that the decree below precludes his claim. That is not the effect of the decree. Possessory rights may be settled at law. The decree only precludes him from claiming title under the deed from Fish to True & Hayward in 1848.

Decree below affirmed with costs.

Peters, C. J., Walton, Virgin, Libbey and Emery, JJ., concurred.