Bird v. Bird , 40 Me. 398 ( 1885 )

Tenney, J.

It is not denied by the defendant, that the plaintiff has exhibited evidence of title to an undivided portion of the premises described in his writ; but he claims title of another undivided portion of the same; and insists that he has rights therein, as a tenant in common with the plaintiff, which will defeat the maintenance of this action.

For the purpose of sustaining the defence, a deed dated June 12, 1830, to David Bird, from certain persons, representing themselves as the heirs, and children of heirs of Andrew Bird, deceased, was introduced; also evidence to show, that they held such relation to Andrew Bird. A deed from said David Bird to the defendant, dated April 13, 1852, was also in evidence. From these deeds and other deeds in the case, concerning which there is no controversj', it appears, that the defendant had title in an undivided part of the premises, unless the deed to David Bird of June 12, 1830, was inoperative. And the plaintiff contended, that it was inoperative on several grounds. The first of which was, that it had been changed after its execution, without any authority, by the erasure of the name of Andrew Bird as grantee, and the insertion of the name of David Bird, as it now appears. This alteration the jury have negatived, under instructions, which were not a subject of complaint in the exceptions.

Another objection to the validity of the deed to David Bird was, that the names of Zenas Mero and Nancy Mero, two of the grantors, were inserted in the body of the deed, just before the date of the deed from David Bird to Jonathan E. Bird, by E. A. Lewis, attorney for the defendants, though it was not denied, that it was executed and acknowledged by those persons, as grantees, at the time it purports to have been executed by them. It was admitted, that the names were inserted in the body of the deed as above stated.

The canceling of a deed will not divert property, which has once vested by a transmutation of possession. A man’s title to his estate is not destroyed by the destruction of his deeds. Hatch & al. v. Hatch & al., 9 Mass. 307. This doctrine is affirmed by this Court in the case of Barrett v. Thorndike, 1 Greenl. 73, and in Lewis v. Payn, 8 Cowen, 71; Jackson v. Gould, 7 Wend. 264.

The deed to David Bird from the heirs of Andrew Bird, deceased, conveyed to the grantee, the interest of the grantors, so far as it was sufficient to do so, at the time of its execution and delivery. No question is made, that the estate of all, excepting that of Zenas Mero and his wife, at that time passed by the deed, unless the grantors were disseized. And having vested a title in the grantee, by the authorities referred to, it was not divested afterwards by the insertion of the words in the body of the deed.' Whether any thing passed from Mero and his wife, at the time they executed the deed, is a question, which the final disposition of this cause does not require to be settled.

Again, the deed is denied to be effectual to pass the estate, because of the uncertainty of the description of the land. The property is described as being “ all our right, title and interest, and all real estate, which we own or have claim to, situated in Belfast in said county of Waldo, and particularly all that belongs to us as the heirs or legal representatives of Andrew Bird, formerly of Belfast, deceased.” If it could be shown, that Andrew Bird, deceased, was the owner of real estate in the town of Belfast, in the county of Waldo, at the time of his decease, the right of these grantors therein would not fail to pass, by any uncertainty in the description. An officer’s return of an attachment of all the debt- or’s right, title and interest in and to any real estate, in a given county, is valid and sufficient to hold all his real estate therein, subject to attachment, in the suit, in which it was made. Roberts v. Bourne, 23 Maine, 165. No good reason is perceived to exist against the effect of a similar description in a deed.

It was contended to the jury at the trial, that if the plaintiff was in possession of the premises, at the date of the deed from the heirs of Andrew Bird, deceased, claiming it as his own, that nothing passed by said deed. The case contains no report of evidence, like the facts supposed in this proposition; but it does find, that there was no evidence whatever to show an ouster of others, who had title with the plaintiff in the premises; and the Judge was not requested to give any instruction upon such a state of facts, as was stated hypothetically to the jury by the plaintiff’s counsel; consequently no such question of law can arise on the exceptions.

“ The possession or entry of one tenant in common, or joint tenant, is always presumed to be in maintenance of the rights of all.” "If there arc several tenants in common, who are co-heirs, the entry of one will not be deemed adverse to the title of the others, without the strongest evidence of exclusive claim of title to the whole estate." Ricard v. Williams, 1 Wheat. 120; Stearns on Beal Actions, 40. No ouster of the heirs of Andrew Bird having been shown, the plaintiff cannot be treated as having made a claim of exclusive possession or right, and the instruction given, that the deed of those, who had title in the premises', and had been tenants in common with him, passed the estate, .which fell to them as heirs, to their grantee, was correct.

Exceptions overruled.