Butler v. Taylor , 86 Me. 17 ( 1893 )

Walton, J.

This is an action of trespass guare clausum fregit, and the question is whether the plaintiff has shown such a possession, actual or constructive, as will enable him to maintain it.

We think he has not. His only evidence of title is a deed from the administrator of Miles Standish of all the decedent’s right, title, and interest in a tract of land, admitted to contain ten thousand acres, and of winch the land on which the alleged trespass was committed is a very small part, and there is not a scintilla of evidence that the decedent ever had a title to any portion of it, or that he, or his administrator, or the plaintiff, ever had so much as a momentary seizin of the land on which the defendant’s trespass is alleged to have been committed. Clearly, such a piece of paper is not sufficient to maintain an action of trespass quare clausum fregit.

It was formerly held that such an action could be maintained only by a person in actual possession of the locus in quo ; that a mere legal or constructive possession was not sufficient. It was so held in a very learned opinion by Chief Justice Robertson, in McClain v. Todd’s Heirs, 22 Am. Dec. 37 (5 J. J. Marsh. 335).

And such was undoubtedly the rule of the common law. But this rule, however well adapted to England, where most of the land is in actual occupation of some one, was thought to be not suited to this country, where there w7as so much wild and uncultivated land. And it soon became a prevailing rule in most of the states that, where there is no adverse possession, a legal title draws with it a constructive possession sufficient to maintain the action. And such is undoubtedly the law in this State.

But, says Professor Greenleaf, though proof of possession, actual or constructive, will maintain the averment of the plaintiff’s possession, yet a deed of mere release or quitclaim, -without proof of possession at the time by the grantor, or of an entry by the grantee, is not sufficient to prove possession. 2 Gr. Ev. § 619. And in support of this proposition he cites Marr v. Boothby, 19 Maine, 150.

On turning to that case we find that the action was trespass quare clausum fregit, and that the alleged acts of trespass were the same as in this case, namely, cutting and carrying away pine trees. To sustain his action, the plaintiff’offered in evidence an administrator’s deed to himself and a tax collector’s deed to John Sands, and a quitclaim deed from Sands to himself. But there being no evidence that the plaintiff' had taken possession of the premises under either of his deeds, he was non-suited by the presiding Justice (Siierley) and the full court sustained the nonsuit. To the same effect is Bartlett v. Perkins, 13 Maine, 87.

In that case the action was trespass for cutting and carrying away grass. The defendant had levied upon the land as the property of the plaintiff’s tenant at will. Of course nothing-passed by the levy. And the court so held. And if the plaintiff had brought a writ of entry instead of an action of trespass, he would have prevailed. But the court held that, although the levy was void, it gave the defendant a color of title, and a sufficient seizin to defeat the plaintiff’s action of trespass quare clausum fregit. And in this particular a sheriff’s deed has the same effect as a levy. Buswell on Limitations and Adverse Possession, § 259, and cases cited in the notes. Any deed, says the author, purporting to convey title, no matter on what founded, gives color of title, and renders the grantee’s possession under it, adverse, however groundless the supposed title may be.

In the present case, the defendant justifies his supposed acts of trespass as the servant of one who claims a title derived through a sheriff’s deed. The sheriff’s deed, antedates the administrator’s deed (through which the plaintiff claims), nearly four years. However defective the sheriff’s proceedings may have been, his deed was sufficient to give the grantees a seizin and a color of title, which, if allowed to continue for a sufficient length of time, would ripen into a valid title, even as against the true owner. And to maintain an action of trespass quare clausum fregit against them or their servants or their successors in title, the true owner'must regain his possession by an actual entry or by judgment of law. Till then, he is disseized, and while he allows that disseizin to continue, he can not maintain an action of trespass quare clausum fregit against the original disseizors or their successors in title. In the case last cited, (Bartlett v. Perkins, 13 Maine, 87) the court say that the plaintiff was disseized by the levy, and could not prosecute an action for any act of the disseizor subsequent to the levy, until he had entered, or recovered judgment for the land.

So, in this case, whether the proceedings of the sheriff were or were not regular, his deed gave the grantees seizin of the land which he undertook to sell, and, until that seizin is purged, an action of trespass quare clausum fregit can not be maintained against them, or their successors in title, for any acts done by them upon the land subsequent to the sale. And the evidence to show that the seizin (or disseizin) has been purged is entirely wanting. The plaintiff’s proof therefore is fatally defective.

Plaintiff’s counsel contend that a deed duly executed and recorded is prima facie evidence of title. That proposition is true only of warrantee-deeds, or deeds which purport to convey the land. It is not true of quitclaim deeds, or deeds which purport to convey only the grantor’s right, title and interest in the land. Rand v. Skillin, 63 Maine, 103 ; Tebbetts v. Estes, 52 Maine, 566.

The plaintiff’s deed from the administrator purports to convey only the decedent’s right, title, and interest in the land therein mentioned; and there is not a scintilla of evidence that the decedent ever had any title to the land,— not so much, even, as a momentary seizin. The deed covers a tract of land admitted to contain ten thousand acres. The consideration, as expressed in the deed, was twenty-five dollars. The inference is irresistible that the parties to the deed did not understand that the one was selling or that the other was buying an interest of any substantial value. Such a deed, alone, and without any other evidence in support of it, is clearly insufficient to maintain an action of trespass quare clausum fregit. Bell v. Peabody, 63 N. H. 233 (56 Am. Rep. 506). Judgment for defendant.

Virgin, J., died before the decision of this case.