Gilman v. Stetson

The opinion of the Court was drawn up by

Weston C. J.

The principal question presented in this case is, whether the judgment in favor of Robert Lapish against the petitioner for the land in controversy, with which the respondent has connected himself, gave a right of entry to the respondent, whereby he became sole seized, or whether that judgment is evidence of title in him. And we are of opinion, that that judgment did not authorize an entry into the land for which it was rendered, and that it does not remain in force, as subsisting evidence of title. A judgment for the recovery of land in a real action is usually conclusive upon the question of title; and may well authorize the peaceable entry of the party in whose favor it is rendered,, without process of law.

But the rights of such party ha-ve been essentially changed by the statute of 1821, c. 47, <§> 1, where the other party has, by the verdict of a jury, established an interest in the same land, in virtue .of the buildings and improvements made thereon by him, .or those under whom he claims. In such case, if the demandant does not elect, on the record, to abandon the demanded premises to the tenant, if he does not, within one year from the rendition of judgment, pay into the clerk’s office, or to such other person as the court may appoint, the sum with the interest thereof, which the jury shall have assessed for such buildings and improvements, he can have no writ of seizin or possession on his judgment. Nor can the demand-ant maintain a new action, for the recovery of the same premises, unless the demandant shall first have paid to the tenant all such costs as would have been taxed for him, had he prevailed in the first suit.

To permit a demandant who had not paid within the time limited, to enter, without process of law, in a case where such process is expressly forbidden, would defeat the manifest intention of the statute, which withholds from him the fruits of his judgment, if he does not extinguish, by payment within the year, the interest of the tenant. And it must be understood, upon a fair construction of the statute, that if he neglects to pay, the judgment ceases to have any validity whatever. He may bring a now action for the premises, upon payment of costs to the tenant, as if he had been the prevailing party, and not otherwise. If the first judgment was to remain as conclusive evidence of title, the prosecution of a new action would be a useless waste of time and expense. The same end would have been much more readily accomplished by providing that the demandant might, after the year, have his writ of possession by paying for the improvements with interest, and also the tenant’s costs. This might have been effected by positive enactment, although generally no writ of execution upon a judgment can issue, unless sued out within a year. But we are satisfied that it was the intention of the legislature, that if the demandant did not perfect his judgment, by payment within the time limited, he should be subjected to the necessity of beginning de novo, as if no judgment had been rendered.

The judgment under consideration having lost its validity, the question remains, whether the verdict for the petitioner is justified by the other evidence in the case. It appears that the entire piece of land, of part of which he now claims to be seized as tenant in common, was conveyed to him by Nathaniel Harlow, in September, 1802, by a deed duly executed, acknowledged and recorded. That the petitioner thereupon went into possession, and continued to enjoy it exclusively until October, 1826, when a judgment for a moiety of the whole, which was afterwards executed, was rendered in favor of the respondent. And in the following year, Zadoc French recovered judgment for a fourth part, which was perfected. The petitioner therefore neither does or can set up any title to the three fourths, thus recovered against him.

And it is insisted, that an entry under these judgments, not only gave them a rightful seizin in their own right, but enured also to the benefit of Lapish, as a seizin by one tenant in common is available to the other cotenant. But when they entered, Gilman was the other tenant in common. He entered, not as disseizor, but under a deed, and had then been in possession twenty-five years. Lapish might have the better title, unless barred by the statute of limitations, but the actual seizin was in the petitioner, and nothing has yet taken place to divest him of it. The judgment in favor of Lapish has lost its validity, and is no longer evidence of title. Whether Lapish could now prevail at law, we have no occasion to decide. He can have no action, until he first pays the petitioner his costs, which has not been done. And if Lapish cannot controvert the title of the petitioner directly as demandant, in a suit at Jaw, the respondent, who has no right to the part in question, except under Lapish, cannot be permitted to set up that title. Otherwise the provisions of the statute, before cited, might be evaded and defeated. With respect to the occupation of the land in the rear of the building, or of the building itself, under the respondent, that would not divest the seizin of the petitioner, he being tenant in common with the respondent. The occupancy by tenants, under the respondent, is justified by bis undisputed title to three fourths, without assuming that the petitioner was disseized. He entered upon the premises and asserted his right in 1829, which was recognized by the tenant, Abbot.

Judgment on the verdict.