Buck v. Babcock , 36 Me. 491 ( 1853 )

Hathaway, J. —

Jacob G. Remick was the owner of the land in controversy, and both parties claim title under him ; the demandant, by Remick’s deed to him, February 11, 1836, not acknowledged, the execution of which was not proved, nor the deed recorded, till January 6, 1853.

The demandant took immediate possession under his deed, and retained it by his tenant, Nathan Emerson.

The tenant claims title by deed from Remick to George W. Luce, dated April 30, 1836, and sundry mesne conveyances to David Messman, who was the tenant’s immediate grantor. Remick’s deed to the demandant, though not acknowledged or recorded, was valid against the grantor and his heirs. Lawry v. Williams, 13 Maine, 281.

The case finds that, at the date of Remick’s deed to Luce, the demandant, by his tenant, was in the exclusive possession of the demanded premises, claiming title. Remick was therefore disseized when he made the deed to Luce, and as the law then was, nothing passed by it, and all the subsequent deeds, under which the tenant claims title, resting upon that deed as their foundation, were inoperative.

The defendant was a mere trespasser, and his deed cannot avail him. Hathorne v. Haines, 1 Greenl. 238.

The tenant also relies upon a tax title derived from Nahum Emery, August 31, 1844, but the case does not present such evidence as the law requires to establish the validity of a tax title. 27 Maine, 289; 30 Maine, 319; Matthews v. Light, 32 Maine, 305.

Tenant defaulted, judgment for demandant for possession, and his damages to be assessed as agreed.

Shepley, C. J., and Tenney, Rice and Appleton, J. J., concurred.