Pejepscot Proprietors v. Nichols , 8 Me. 362 ( 1832 )

Mellen C. J.

delivered the opinion of the Court 'at the adjournment ofMayterm in Cumberland, in August following.

The principal question in this case is, whether the deposition of Thomas Lambert was properly admitted in evidence. By the report it appears that, on the trial of the cause, the general title to the premises demanded was admitted by the tenant to have been in the demandants; and the tenant does not pretend to have derived any title under them by any deed or other conveyance in writing. He merely relies on a title by disseisin, which he contends, he has established by the evidence reported. Lambert deposes to certain declarations made by Josiah Little, who, at the time of making them was the general agent of said proprietors. In reply to an enquiry made by Nichols, he said, when speaking of the lot in question, “ We do not own it; we are not agents for it.” He went on to observe that it was a part of four hundred acres belonging to certain persons in England. Was this legal evidence ? Could Little, as general agent, by his confessions, affect or impair the title of the demandants ? The land in question having been the undisputed property of the Pejepscot proprietors, Little could not, by parol, transfer the property to any one, or waive their title, and thus defeat it, and the action brought to recover the possession of it. To allow this, would in effect, be to repeal and do away the unquestioned principle of law, that real estate, in no case, can be transferred by parol. The declarations ahovernentioned were calculated only to deceive and mislead the jury. What effect they had on their minds we do not know; but they might have considered it as an abandonment of the land by the demandants and sufficient to bar a recovery ; and thus they might have been induced to return their verdict for the tenant. As the proof in question might have had an influence, and yet ought not to have had any, we think the verdict must be set aside and a new trial granted. A decision on this point renders it unnecessary to examine any of the other questions which have been discussed at the bar.

Verdict set aside and new trial granted,