Dadmun v. Lamson

Bigelow, C. J.

It seems to us that the plaintiff failed to prove at the trial any right of property or possession in the premises in controversy. So far as his alleged title rests on the assignment of the mortgage from Calvin Greenleaf to Pope, it is open to the objection that at the time of the transfer the mortgagee was disseised and could convey no title. The evidence of disseisin, as stated in the exceptions, is plenary. It not only appears that Silas S. Greenleaf, under whom the defendant occupied the premises, entered thereon in May or June 1861, and expelled therefrom the mortgagor with his family and cattle, declaring that he should hold possession of the farm against all the world, since which time he and the defendant under him have continued to occupy and improve the premises, but it is also proved that at the time of such entry it was the intent of said Silas to disseise Pope, the mortgagee, inasmuch as he accompanied his entry upon' the farm and the expulsion of the mortgagor with a distinct declaration that he denied the validity of the mortgage. This denial was made known to the mortgagee a„ the time of the entry, and has been persisted in by the disseisor down to the time of the bringing of these actions. It is difficult to see how the evidence of ouster and disseisin, both of the mortgagor and mortgagee, could be more clearly established.

That a mortgagee may be disseised by a stranger is too clear to admit of doubt. In Poignand v. Smith, 8 Pick. 272, it was held that when land is mortgaged, a person who, by taking pas» session of it, disseises the mortgagor, disseises also the mortgagee, and so long as the disseisor is in possession the deed of the mortgagee will not pass his interest in the land. In that case the evidence of disseisin was much less decisive than in the case at bar. There was no proof of any intent to disseise the mortgagee, or of any denial of his title. It was urged by the counsel for the demandant in that case, not only that a mortgagee before actual entry could not be disseised, but that no disseisin could take place without actual notice to him. But it was held that no such notice was necessary, and that an exclusive and adverse occupation «of the estate under a claim of title would operate to disseise both mortgagor and mortgagee. Without affirming this doctrine to its full extent, it is sufficient to say that the facts proved at the trial of this case bring it within the more restricted rule, as stated in ■ Hunt v. Hunt, 14 Pick. 385. “A mortgagee as well as mortgagor maybe disseised by a stranger. But it must be by an actual ouster and exclusive occupation.” Silas S. Greenleaf, the disseisor, was a stranger to the title. He did not claim to hold either under the mortgagor or mortgagee, but adversely to both of them; the ouster and exclusive possession were clearly shown, and moreover it was proved that notice of the dispossession and of the adverse claims of the disseisor was brought home to the mortgagee.

The doctrine that a disseisee, without e,ntry and delivery of the deed on the land, cannot convey any title which will be valid as against the disseisor, is too well settled and, has been too often recognized by this court to be now called in question. Brinley v. Whiting, 5 Pick. 348. Boston & Worcester Railroad v. Sparhawk, 5 Met. 469. Foster v. Abbott, 8 Met. 596. Barry v. Adams, 3 Allen, 493. 4 Dane Ab. 6, 15, 25, 26. The policy of the common law has been from an early period to restrain and prohibit the conveyance of land by one who is not in actúa, seisin and possession thereof. Inasmuch as such person ha? only a right of entry, a transfer by him tends to violate the laws against champerty and maintenance, and the purchase and sale of pretended and disputed titles. Whether this ancient rule of law is consistent with the present mode of transfer of title to real property, and is well adapted to the condition and wants of the community, is a question for the legislative branch of the government. While the rule continues in force, it is the duty of courts to recognize and apply it.

The only other claim of title or right of possession which the plaintiff set up at the trial was that which he attempted to acquire by the attachment and seizure on execution in his favor of the right of Calvin Greenleaf to redeem the premises in controversy. But this cannot avail the plaintiff in these actions. By his attachment and sale of the right in equity and the sheriff’s deed to him, he acquired only the right of redemption of the debtor. This gave him no right to enter on the premises as against the defendant, who held a mortgage of the estate made by the debtor to one Sawyer, and by him assigned to the defendant.

In the view which we have taken of the plaintiff’s title, it seems to be clear that he cannot maintain these actions. Upon a new trial he may be able to change the aspect of the evidence relating to the disseisin of the first mortgagee. Unless he can do so, the other questions raised at the trial will be immaterial. We are, however, unable to see that any of the rulings of the court upon the competency of evidence were in any respect incorrect. Exceptions sustained.