Loomis v. Pingree , 43 Me. 299 ( 1857 )

Goodenow, J.

This is a plea of land, whereby the plaintiffs, Lewis Loomis, Ebenezer Gilson and Daniel Lawrence, demand of said Pingree, and John E. Thayer, and Nathaniel Thayer, possession of township No. 3, 3d range, in said county of Franklin.

The writ is dated July 7, 1854. The defendants plead the general issue, and by brief statement allege that the title to the demanded premises is in said John E. and Nathaniel Thayer, and deny that the plaintiffs have any title or right in or to the same. And the said Pingree alleges that all the control and occupation of the demanded premises by him exercised, since 1851, has been under the other defendants, by virtue of their title.

By an act relating to the separation of Maine from Massachusetts, and forming the same into a separate and independent state, passed June 19, 1819, it was provided, that “all rights of action for, or entry into lands, and of actions upon bonds for the breach of the performance of the condition of settling duties, so called, which have accrued or may accrue, shall remain in this commonwealth, to be enforced, commuted, released, or otherwise disposed of, in such manner as this commonwealth may hereafter determine.”

On the 4th of June, 1836, the land agent of Massachusetts, agreeably to resolves passed the 17th of June, 1820, and the first of April, 1836, conveyed the township demanded, to Rufus Davenport, ancestor of the plaintiffs’ grantors, taking-back a mortgage on two thousand acres of the same, to secure the payment of $900, which had been agreed upon, as the amount to be paid by way of commutation, and in lieu of a full performance of the condition in relation to “ settling duties.” By the original grant and conveyance of this township to Edward Blake, May 15, 1804, the grantee, his heirs and assigns, were required to perform certain “ settling duties,” and the deed to him from the agent of Massachusetts, was upon this condition.

By the resolve of April 1, 1836, the lands were declared forfeited, unless the settling duties were performed or commuted by the first of January following.

The plaintiffs derive their title from the heirs of Rufus Davenport, by deeds which are in the case, and are particularly noticed in the report, and to which we refer.

In answer to tins, the defendants contend, first, that all the demandants must prove title; otherwise all must fail, and that judgment must be for the defendants. And that if Rufus Davenport once owned the land demanded, and is dead, and Henry Davenport and others, who executed the deed, dated June 4, 1843, to Lewis Loomis, were the heirs and only heirs of Rufus, that Loomis acquired no title, till the deed was delivered, which, was on the 16th of June, 1853, and that his quitclaim deeds of June 4, 1853, to Ebenezer Gilson and Daniel Lawrence conveyed no title. These deeds purport to have been acknowledged on the 21 st of June, 1853; and, ut res magis valeat quam pereat, we may well presume, notwithstanding the form of words as to the attestation, that the deeds were in fact delivered on the day they were acknowledged, and in such order of time as to make them effectual to carry out the intentions of the parties to them.

William Richardson, the magistrate who took the acknowledgments, also was a witness to the execution of the deeds by Lewis Loomis only. A different person was a witness to the execution of the deeds by his wife. From this circumstance it may be presumed that they were not executed by both at the same time and place; and that they were not delivered before they were executed by the wife.

William Richardson does not state, in his deposition, that he saw the deeds delivered.

Second, it is contended by the defendants, that the deed of these heirs of Rufus Davenport does not purport to convey the whole township, but only their right, title, interest and estate, and excepting therefrom, four lots of three hundred and twenty acres each ,• and also two thousand acres, under a mortgage from said Rufus to the Commonwealth of Massachusetts ; and also three thousand four hundred acres, under a mortgage to John Haven and Alexander Ladd. We are of opinion that the interest of said heirs in the lands mortgaged was conveyed, and also whatever right they had in said four public lots; and that the exception was only an exception as to all legal incumbrances.

Third, it is contended that all the heirs of Rufus Davenport have not joined in said deed, and that therefore the title of the plaintiffs fails to a portion of the premises, if not to the whole.

By the deposition of Henry Davenport, it appears that Rufus, at his decease, left as his heirs, two sisters, Catharine and Joanna, and four children of Elijah, a deceased brother, all of whom, representing three-sixths of the estate, executed the deed. Also Robert Steele, Samuel Davenport Steele, Warren Parmenter and Priscilla S. Parmenter, wife of said Warren, in her right, being all heirs of Mrs. Patience Steele, formerly Patience Davenport, who was a sister of said Rufus, representing another undivided sixth part, executed the deed. Also Dr. Edward S. Davenport, Enos Ford and Elizabeth, his wife, in her right, Henry G. Fuller and Margaret M., his wife, in her right, and Sophia H. Davenport, being all the heirs of Samuel Davenport, deceased, who was a brother of said Rufus, and as such representing another undivided sixth part of said estate, executed the deed.

An exception is here taken to the power of attorney of Enos Ford, who executed said deed in behalf of Sophia II. Davenport. We are of opinion that the power of attorney is sufficient to confer authority to transfer the interest of Sophia H. in said estate, especially as against’ all persons who do not claim under her.

Another objection taken is, that Ellen Davenport, who was insane, did not execute the deed. It appears by the deposition of Henry Davenport, that she had been hopelessly insane for the last twenty years. The grantors covenant that they are solely entitled to represent said sixth part of the estate of said Rufus, and that they will warrant and defend the same to the said Loomis, against all persons claiming the same under the said Rufus.

This, in our opinion, entitles the plaintiffs to hold the right of the said Ellen against all who do not claim under her, or by a title paramount.

The same remark will apply to the objection, that Samuel Steele did not execute the deed; and to the objection, that “ Sarah” Davis, named in the body of the deed, has signed it by the name of Sally Davis, being one of the heirs of Sarah Dunbar, who was a sister of said Rufus Davenport, and whose nine heirs, representing another sixth part of said estate, executed the deed.

Fourth. It is contended that Rufus Davenport had no title to the premises, at the time of his decease, because the settling duties were not performed by Edward Blake, from whom he claims a title to three thousand six hundred acres; Or if they were, that the whole township was conveyed to Blake, and that the title is still in him, except as to the three thousand six hundred acres; and that Rufus Davenport acquired no title by the deed of John Peck to him,’ because that also was upon the condition, “ that said Blake before the first of January, 1801, shall have settled thirty families within said township ;” or by the deeds of John Haven and Alexander Ladd, executors, who had no authority to convey the estate of his testator; and that the resolves of Massachusetts did not confer on Coffin, the land agent, authority to convey in the manner he did; or if they did, that the deed was not so drawn and executed as to comply with the authority; or that Massachusetts had no title to said township, the same being in Blake. Until the defendants show some title, either from Massachusetts or from Blake, we do not consider them as presenting themselves in a condition to raise these questions. Conditions may have been waived, or adjustments made, in which strangers have no concern. Smith and al. v. Bodfish, 27 Maine R., 289.

The resolve of April 1, 1836, and the action of the land agent of Massachusetts under it, June 4,1836, is prima facie evidence that an adjustment was made in a manner satisfactory to the state.

It is for those who make the conditions to insist upon their performance.

In their brief statement the defendants deny that the demandants have any title; and allege title in themselves. The demandants prove title to a large part of the premises, and an incohate right under a deed of warranty to the shares of other heirs. The defendants do not claim under those heirs. They show no title. The demandants have elected to consider them as disseizors, for the purpose of trying the title; and all the facts in the case show that they liave a better right to have possesion of the premises than the defendants have to hold them. The possession of one tenant in common is the possession of another, and each has a right to possession for himself and all others, as against strangers, having no title.

Fifth. It is contended that the defendants have established title in themselves, tinder one or two sales for taxes.

1. By a sale by Whitney, sheriff of Oxford county, July 20, 1829. On the part of the plaintiffs, it is alleged that the tax of 1828, by virtue of which this sale was made, was not properly advertised by the state treasurer; that the notice published in the Portland Advertiser, then the state paper, does not state that a tax had been levied, or describe the tract intelligibly ; that it was not published six weeks successively before the time of sale, in the state paper; that the paper of July 14, 1829, does not contain the notice or advertisement; and that the sheriff exposed the township for sale, instead of selling “ so much of the land as would discharge the taxes and reasonable expenses of sale;” and that “he sold the whole township to the highest bidder.”

By statute, January 29, 1822, chap. 183, it was made the duty of the sheriff, upon the receipt of a warrant from the treasurer of the state, “ forthwith to proceed to sell so much of said land as will discharge said taxes, and the reasonable expenses of sale,” &c.

Without noticing all these objections to the validity of the sale by Whitney, we are of opinion that the one last named is fatal.

2. The defendants claim through Pierce and Goodrich, who were purchasers at the sale of the land agent, April 30, 1849.

The testimony proves that Henry Davenport tendered the amount duo to the assignees of Pierce and Goodrich, for himself and the other co-tenants, heirs of Rufus Davenport, within the time allowed by law for redeeming the lands sold. But it is contended that this tender was insufficient to defeat the title of the defendants, acquired under the deed of the land agent of Maine.

1. Because Henry was heir of only one-twenty-fourth part of the real estate left by Rufus Davenport, and as such he had no authority to tender for the other heirs and co-tenants.

We are of a different opinion. The land was sold, in solido, for the gross amount due for taxes, &c. Any one interested could tender payment for all the other co-tenants, as well as for himself, although by the statute of 1849, chap. 125, sec. 4, he was not obliged to do so. This statute gave tenants in common of lands sold for non-payment of taxes, a privilege, which they had not before.

Before this statute, land owned in common by different proprietors, which had been taxed and sold at auction, in solido, for the payment of taxes, could be redeemed by any one of the co-tenants; and the purchaser was at liberty to refuse to receive any part, without the whole amount for which he was entitled to hold the land. Watkins and al. v. Eaton and al., 30 Maine R., 529.

2. It is said the money tendered should have been brought into court. This is not an action to recover the money. An offer of payment, within the time allowed by law, for the purpose of saving a forfeiture, must be regarded for this purpose as equivalent to an actual payment made at the time of the offer.

By the deed from the land agent the owner had a right to redeem the land within one year from the time of sale, by paying to the purchaser or assigns, the amount for which the same was sold, with interest thereon at the rate of twenty per cent, per annum, &c. The purchasers or their assigns had no right to impose upon him an additional burden or duty.

3. It is contended that if the tender was properly made, the title to said township would not thereby be revested in Rufus Davenport or his heirs without a deed from the purchasers. Here are no equities to be adjusted, as in the case of estates mortgaged, where there has been an entry for condition broken. If the mortgagee be in possession of the mortgaged premises, and the condition of the mortgage be performed according to its terms, the mortgagor may maintain an action at law to recover possession. 2 Mass., 493, 495; 3 Met., 55, 58. We see no good reason why the purchasers or their assigns should be in a better condition than mortgagees. The plaintiffs, upon payment of the amount clue, are by operation of law in possession, as of their former estate.

In Watkins v. Eaton, 30 Maine R., 535, it is said by Shepley, C. J., “ A sale for the payment of taxes is but an incumbrance upon the estate, so long as the right to redeem exists. The purchaser receives and holds the title as security for money paid; and such title is in principle a mortgage, although it does not exist in a form to be included by our statute provisions respecting mortgages.” It may be greatly for the convenience of the plaintiffs to have a release from the defendants, and to have it put upon record. Before they can require this, they must pay or offer to pay, according to the statute, “ the cost of reconveying the same,” as well as the other amounts specified, in order to redeem the land.

Sixth. It is contended by the defendants, that by the deed from Lewis Loomis, one of the purchasers of the right acquired under the sale by sheriff Whitney, to Thomas Wentworth, one of the grantors of the defendants, on the 27th of May, 1843, and by the covenants in the same, he, the said Loomis, and those claiming under him, should be es-topped from setting up or claiming under a title subsequently acquired by him.

It is not a deed of general warranty. It purports to sell and convey, “ all his right, title and interest in and to one undivided half part of a certain township of land situated,” fee. It was the title which he then had, and nothing more, which he undertook to convey. The purchasers probably knew what that title was, and took it with all its infirmities. He did not covenant that he was seized of the premises, either by right or by wrong; or that he had good right to sell and convey the same. But he did covenant that he had not conveyed away to any other person or persons, any right or title to the premises, which he had previously held; by the stipulation, that he and his heirs “ would warrant and defend the premises, &o., against the lawful claims and demands of all persons claiming by, through or under him.” We do not regard this covenant as sufficient to estop him or his assigns from setting up, against the defendants, a title subsequently acquired by him.

A vendor will not be estopped to set up his title subsequently acquired, unless by doing so he be obliged to deny or contradict some fact alleged in his former conveyance. Pike v. Galwin, 29 Maine R., 183.

When one has made a conveyance of land by deed, containing no covenant of warranty, an after acquired title will not inure or be transferred to the vendee. Ibid. This case was decided in 1818, and directly overruled the doctrine asserted in the case of Fairbanks v. Williamson, 7 Greenl., 96. Mr. Justice Wells gave an able dissenting opinion, published in 30 Maine R., 539. And in conclusion says, “ But if the rule, laid down in Fairbanks and al. v. Williamson, were clearly incorrect, in my judgment it would be unwise to change it without the action of the legislature. It has now remained nineteen years, many decisions have been made in conformity to it, and many titles have been acquired under it.” * * “ The stability of legal decisions affords a security which ought not to be impaired, unless upon the most pressing necessity.”

The last decision in the case of Pike v. Galvin, having been made more than nine years, whatever may be said on the one side or the other, the interest and peace of the community require that we should abide by it.

Upon a careful examination of all the evidence in the case, and of the law appertaining to the same, we have arrived at the conclusion that the plaintiffs are entitled to recover the land demanded in their writ; and that according to the agreement of the parties, a default must be entered.

May and Davis, J. J., concurred; Tenney, C. J., and Hathaway, J., concurred in the result; Rice, J., concurred that there should be a default, but not for the whole tract of land.

Note. This case was argued in the middle district, and determined by the members of the court who held that term.