Quimby v. Dill , 40 Me. 528 ( 1885 )

Goodenow, J.

This is a writ of entry. Enoch Dill and Doraxa, his wife, two of the respondents, plead the general issue, and filed a brief statement, claiming that they are seized of a life estate in the demanded premises, by virtue of a lease from Eben. M. Dill to them. The respondent, Mercy Dill, pleads the general issue, and also files a brief statement, claiming that she is seized of a portion of the demanded premises, by virtue of a levy of an execution in her favor, against said Enoch Dill; and that, as to the residue of said premises, she claims to hold the same, as tenant of the said Enoch and Doraxa, under their lease; and that if she is not seized by virtue of said levy, of any part of said premises, then she claims possession of the whole, as tenant of said Enoch and Doraxa Dill.

The demandant puts into the case a deed from Enoch Dill to Eben. M. Dill, embracing the demanded premises, dated July 8, 1843, acknowledged the same day, and recorded Oct. 19, 1847. Also a deed of quitclaim of the same premises to himself, from Eben. M. Dill, dated March 22, 1853, acknowledged the same day, and recorded May 17, 1853.

The respondents put into the case a lease of said premises, from said Eben. M. Dill, to said Enoch Dill and Doraxa Dill, his wife, acknowledged July 3, 1843, and’ recorded April 9, 1849, to hold the same, "during their natural lives, or the life of the survivor.” “ And the said Enoch Dill has the privilege of furnishing a home for his daughters at his house, so long as they shall remain unmarried.” Mercy Dill is a daughter of Enoch, and remains unmarried.

The facts relied upon by Mercy Dill, independent of her levy, are insufficient to entitle her to hold the ■ demanded premises against the demandant. The lease of Eben. M. Dill to Enoch Dill allowed him the privilege of furnishing a home for her on the premises while she remained unmarried. It did not make her tenant of the freehold, as she claims to be by her pleading. 2 Greenl. on Ev. § 556.

Is she tenant in fee of that part of the premises covered by her levy ?

It is not contended that the deed from Enoch Dill to Eben. M. Dill, was fraudulent or void as to subsequent creditors. It was prior to her attachment, which was on the 9 th of Nov., 1850. The account annexed to her writ, is for her “services doing house-work from June, 1827, to June, 1828; 52 weeks, at $1 per week, — $52,00.” “Interest on the same sum, 14 years, up to year 1843, $43,68.” And for each year the same sum, with the interest on the same, to 1843, including $10 for money lent, and interest on the same; and the whole amounting to $1055,28. There was no evidence in the case to prove an express promise, on the part of her father, to pay her for her services. The probability is, that they were rendered without any expectation of any pecuniary reward. There is no evidence that she ever demanded or claimed payment of her father until the 8th of Nov., 1850, the day before the action was commenced against him. It appears that he then indorsed the following admission and promise on her account, which was subsequently annexed to her writ, to wit: — “I hereby acknowledge that the within account is correct and justly due Mercy Dill, and that I will pay the same.

Enoch Dill.”

“Nov. 8, 1850.”

Whatever may have been the merits of her claim for the principal debt, the case does not show any facts by which it can be implied that her father was bound to pay the interest charged in her account. He, perhaps, obliged himself to do so by his express promise on the 8th of Nov. 1850.

If a creditor, having demands accruing partly before, and partly after a conveyance by his debtor, which he would impeach, on the ground of fraud, blends them in one suit, and, having recovered judgment, extends his execution on the land; he can come in only in the character of a subsequent creditor. Reed v. Woodman, 4 Maine, 400.

We are of opinion that Mercy Dill is not entitled to hold that part of the demanded premises covered by her levy. And that as to the residue, she has no title under the lease.

By the R. S., c. 129, § 1, if any tenant in dower, or by the curtesy, or tenant for life or years, shall commit or suffer any waste on the premises, the person having the next immediate estate of inheritance therein, may have an action of waste against such tenant, wherein he shall recover the place wasted, and the amount of damages done to the premises. And the fifth section gives the same right of action to one who has the remainder or reversion.

But this is not an action of waste, and it therefore becomes unnecessary to determine whether such an action could or could not be maintained, upon the evidence submitted to us in this case.

But it is contended, as to the title of Enoch Dill and wife, that their estate under the lease has been forfeited. That they have undertaken, by conniving at the suit of Mercy Dill and her levy upon the premises, to destroy the title oí their landlord, and to affirm that the title to the same is in said Mercy, and thus effectually to alienate the estate in fee and to put a stranger in possession of it and to embarrass it.

And so far as the facts are concerned in this allegation it appears to be well founded. The whole of this extraordinary account of Mercy Dill was admitted by her father to be justly due to her the day before her suit was commenced ; and it also appears by the officer’s return, that he chose one of the appraisers, when the levy was made.

But is the proposition equally well founded in law ? It is true, Mr. Dane says, while examining the English cases upon this subject, c. 136, a. 3, § 5, “It is a general principle,- that if a particular tenant alien a greater estate than by law he is entitled to do, and thereby divests the remainder or reversion, he forfeits his estate to him, whose right is attacked thereby.” And the reasons given are, 1. Because such alienation amounts to a renunciation of the feudal connexion and dependence. 2. It tends, in its nature, to divest the remainder or reversion expectant. 3. The particular tenant, by granting a larger estate than his own, has, by his own act, put an end to his original' interest, and on such determination, the next taker is entitled to enter regularly, as into his remainder or reversion.”

It is also true, that with all Ms researches, he was unable to cite one American case in which a forfeiture of the estate has been adjudged or decreed for this cause.

Chancellor Kent says, “Estates for life were, by the common law, liable to forfeiture, not only for waste, but for alienation in fee.” “And that in New York and Pennsylvania, this feudal notion of forfeiture is expressly renounced and the doctrine placed upon just and reasonable grounds. Any conveyance by a tenant for life, or years, of a greater estate than he possessed, or could lawfully convey, passes only the title and estate which the tenant could lawfully grant. It is, therefore, an innocent conveyance, whatever the form of the conveyance may be, and produces no forfeiture of the particular estate. It does not, like a feoffment with livery at common law, ransack the whole estate, and extinguish every right and power connected with it.” 4= Kent, 83. By the R. S., c. 91, § 9, we have a provision similar to that referred to above.

Upon this branch of the case, we are of opinion that the defence is made out, and that, as the demandant has no right of possession till after the termination of the life estate, there must be

Judgment for the defendant.

Tenney and Rice, J. J., concurred in the result. Appleton, J., concurred.