Citation Numbers: 19 Me. 383
Judges: Weston
Filed Date: 6/15/1841
Status: Precedential
Modified Date: 9/24/2021
The opinion of the Court was delivered by
When the demandant made his attachment, the tenant, the judgment debtor, was in possession of the demanded premises, claiming to hold the same in fee. He held under a deed of warranty from Russell O. Ellis, dated February 7, 1833, who had a deed of warranty from David Gulliver, dated August 20,1831, Gulliver being at that time in actual possession. Under these deeds Ellis and the defendant successively entered and quietly occupied, up to the time of the demandant’s attachment. That attachment and the subsequent levy, whatever error there may have been in the registry, put the demandant, as against the tenant, in the seizin of the premises, as much as if the tenant had at that time given him a deed of the same. And his acceptance of a mortgage from Page, between the attachment and the levy, could not impair the rights of the demandant.
After the levy, as between the parties, the tenant became the tenant at will of the demandant. If he resists his entry, the demandant may treat the tenant as a disseizor, at his election. Whatever right Jonathan Tucker may have derived, from the assignment to him of the mortgage from Page to the tenant, it does not appear that he has entered as mortgagee, or interfered in any manner. The demandant has made out a prima facie case. If he would have avoided his title, he should have set up distinctly, in his brief statement, title in another, which he has not done. The demandant at his election may treat him as a disseizor. It is no defence for him to allege, that he is not tenant of the freehold, at least without averring in whom the freehold is. The tenant having made out no available de
Judgment for the demandant.