Millay v. Millay , 18 Me. 387 ( 1841 )

The opinion of the Court was drawn up by

Shepley J.

Whatever of interest the plaintiff might have in the land by virtue of bis occupation and the, deed from the widow, of John Millay, he was precluded from questioning the title of Savage, by consenting, that the title should be conveyed to him, and by receiving á bond from him for a conveyance of it. After that time his occupation could be only that of a tenant at will under Savage. The title passed ,to Israel Millay by the conveyance from Savage, and the plaintiff was in a position no more favorable than before that conveyance. Israel might make a peaceable entry upon his own estate; and having so entered he would be entitled to protect himself against one, who had no title. Any notice of the intentions of the plaintiff given to Israel would not change the rights of the parties. The instructions requested on this point were properly refused; and those, which were given, were very favorable to the plaintiff. Whether more so, than the testimony authorized, it is unnecessary to consider.

The hand of the plaintiff appears to have been exhibited to the jury in connection with the testimony tending to prove that it had been thus injured in this affray without objection. Testimony was afterward introduced by the defendants to prove, that the injury exhibited, had existed years before this conflict. The instruction to the jury, that if they believed, that the plaintiff attempted to deceive them in this particular, they might take it into consideration in connexion with the other conflicting testimony in the case, does not declare any legal rule controling the judgment of the jury. They were left free to allow it to have such an influence as they should think reasonable and just. It is rather a commentary on the testimony called forth by the position in which the plaintiff had chosen to place himself, than a statement of any rule or presumption of law. It was much less severe than the rule, which the law applies to the testimony of a witness thus situated; and it does not appear to be liable to any just objection.

Judgment on the verdict.