Witham v. Perkins , 2 Me. 400 ( 1824 )

Mellen G J»

The demandant is the' grand-daughter of Eliphalet Perkins, and the tenant is his son, and has been in the open and actual possession of the lands and estate of which the demanded premises are a part, for more than forty years before the commencement of this action. A short time before it was commenced, the demandant made a formal entry, and then claimed her share of the estate ; — in this action she declares on her own seisin'; — and the questions are — whether she had a right of entry and a right of action when this suit was commenced ; — and whether she can have any such right during the life of David Thompson her father. The jury have decided .that the long continued and actual possession of the tenant has been as tenant in common with the other heirs of Eliphalet Perkins ; and so not an adverse possession, and a disseisin of those heirs. It follows that when Mrs. Thompson died in 1784, she died seised, as tenant in common with the other heirs of her father; the tenant’s possession being constructively tbe possession of •all his co-tenants. David Thompson, on the death of his wife, became seised, as tenant by the curtesy, of the share in common, of which his wife died seised ; and for the same reason that thes actual possession of the tenant has not been adverse to the right, and title of the heirs, it has not been adverse to the right and title of Thompson as tenant by the curtesy; — and hence ■ also it follows that ever since the death of his wife he has been constructively in possession as tenant in common with Perkins the tenant. This estate of Thompson still continues, and his rights have not been impaired by any act on his part, though the tenant has been permitted to occupy and receive the profits 'of the estate. From this view of the facts of the case, and the. application of well known principles to those facts, it plainly .results that during the life of David Thompson the tenant by the curtesy, the heirs of his wife can have no right of entry upon the lands, whether in the actual or constructive possession, of Thompson himself, or of any other person. The entry, then, of the demandant, made upon the lands previous to the commencement of this action, was without right, and proves no lawful seisin sufficient to maintain this action ; — and being merely a formal entry, she thereby gained no title by wrong, in virtue of which she might maintain a writ of entry against the person' on whose possession such formal entry was made. It is competent for the tenant to make this defence, and we are of opinion it is sufficient to bar the plaintiff. Let the verdict be set aside, ■and a nonsuit be entered.