Hamblin v. President of Bank of Cumberland , 19 Me. 66 ( 1841 )

The opinion of the Court was delivered by

Weston C. J.

It appears that the fee of the whole land, in which dower is demanded, had been in Joseph G. Hamblin. The evidence offered by the demandant is not sufficient to justify the jury in finding that Eli Hamblin, her husband, after-wards became sole seized. By the subsequent occupancy of both, the fee would remain according to the legal title. Eli having built by the consent of Joseph, might, have held or sold his house as personal property. The parol division of the two houses, if it was intended to embrace the land, could not have the effect to put Eli in the legal seizin of it. And in the judgment of the Court, sole seizin in Eli could not be legally made out by the evidence offered and rejected. The opposite doctrine cannot be sustained, in conformity with our law, from the case of Dolf v. Bassett, 15 Johns. 21, which is, as the court admit, obscure in its facts, and it does not appear to be very clear in its principles.

The resemblance is so strong between this case and that of Hains v. Gardner & al. 1 Fairf. 383, that in the opinion of the Court, the tenants, holding under the deed of Joseph G. and Eli Hamblin, ought not to be received to deny the seizin of Eli in a moiety. He might have held the house, as personal property. That constituted the principal value of the premises. By uniting in the deed, the house passed to the grantee, which being the personal property of Eli, would not have passed, if the deed had been executed by Joseph alone. Russell v. Richards & al. 1 Fairf. 429. The deed contains the usual covenant of seizin, which is the covenant of both the grantors. Thereby Joseph, who previously had the title, covenants that Eli is seized as well as himself. Looking at that deed alone, the legal effect of it undoubtedly is that a moiety passed from each; and nothing is perceived in the case, which can entitle the tenants to controvert this result.

If the demandant claimed of the tenants dower in the whole, when she was entitled only to dower in a moiety, as the premises were truly described in her written demand, she may recover a less share, according to the title she has been able to verify. Atwood v. Atwood, 22 Pick. 283.

Judgment on the verdict.