Peabody v. Hewett , 52 Me. 33 ( 1861 )

The opinion of the Court was drawn by

Tenney, C. J.

The demandants in this action seek to recover a judgment for possession of a tract of land in Muscle Ridge plantation, in the county of Knox, formerly known as Peabody’s island, and more recently as Hewett’s island.

The tenant pleads the general issue, which is joined. He also files a brief statement, claiming what are usually denominated betterments, on two grounds. 1. That, the premises having been in the actual possession of the tenant, and those under whom he claims, for more than six successive years before the commencement of this action, he claims compensation for the buildings and improvements on the premises, made by him and those under whom he claims ; and he requests that an estimation be made by the jury of the increased value of the premises, by reason thereof. 2. That he alleges and offers to prove that he, and those under whom he claims, have had the premises in actual possession for more than twenty years prior to the commencement of this action, and he requests that the jury shall find the value of the premises, at the time the tenant and those under whom he claims first entered thereon, and that, in estimating the increased value' of the premises by reason of the buildings and improvements, they shall find the .value of the premises at the time of the trial, over and above the value thereof at the time the tenant and those under whom they claim first entered thereon.

The demandants, in proper written form, request that the jury estimate what would have been the value of the premises at the time of the trial, provided no buildings had been erected, or improvements made, or waste committed by the tenant or those under whom he claims, if they shall find the tenant is entitled to betterments, and shall estimate the value of the buildings and improvements, or the increased value of the premises, by reason thereof, as requested by the tenant.

Stephen Peabody conveyed to Solomon Peabody, the father of the demandants, by warranty deed dated Nov. 9, 1803, duly acknowledged and recorded, the island in question. Stephen Peabody received conveyance by a like deed from George Ulmer, dated July 27, 1803, of the premises.

Solomon Peabody was in possession, under the deed to him, from its date till about the year 1827, of the same, when he moved away and was soon after succeeded in occupation of the island by Israel Gregory, who continued - to occupy the same till July 24, 1843, when he conveyed the same by a warranty deed, to the tenant, duly acknowledged and recorded.

Under the general issue, the tenant claims to hold a title in fee by a disseizin made by Gregory, his grantor, continued without interruption for more than twenty years by his grantor and himself.

That more than twenty years have elapsed since the tenant’s grantor commenced the occupation of the premises, before the date of the writ, is not denied, but it is insisted for the demandants, that during the most of the time between the commencement of the occupation of Gregory and the institution of this suit, this occupation has been in submission to the title of Solomon Peabody, during his life, and of his heirs or their grantees, since his death; and if any disseizin has been made by the tenant or those under whom he claims, it has been purged.

The demandant introduced in evidence a writing, coming from Gregory’s possession, in the following words and figures : — "Thomaston, Jan. 10, 1829. This is to certify, that I, Philip Ulmer, of Thomaston, do agree to convey a certain island, known by the name of Peabody’s island, and one by the name of Crow island, and another by the name of Two Bush, for the consideration of three hundred and fifty dollars, to be paid in two years, in annual payments, which Israel Gregory has given his notes for this day, and if said Gregory pays said notes, then the said Ulmer is to give the said Gregory a deed of the above mentioned islands, and if said Gregory fails of paying said notes, then the above obligation is to be void, otherwise it shall remain in full force and virtue. "Philip Ulmer.

"Attest, Harriet Ulmer. Alden Ulmer.”

Alden Ulmer, called as a witness for the demandants, testified that he was the administrator of his father, Philip Ulmer’s estate, that he was fifty-two years old; remembered when his father cut the hay on Peabody’s island, was eighteen or'nineteen years old at the time his father cut the hay, and that his father had the care of the island, some two or three years before Gregory went on; did not recollect the time of going on, or the fact. The witness further testified that he " heard his father say he never had the island in charge for himself; this was while he was in possession. The conversation was, that Peabody owed him a small sum, and that he had the island in charge to make that out of, and whatever he made over, that he was to return to Peabody.”

The testimony contained in the preceding paragraph was objected, to by the tenant. The witness further stated, that he never set up any claim to the island, and his father never claimed title thereto to his knowledge.

The demandants introduced in- evidence the two notes dated January 10, 1829, signed by Gregory, payable to Philip Ulmer, in one and two years respectively, with interest, and described in the contract of the same date; also a receipt dated May 28, 1828, Philip Ulmer to Israel Gregory, for rent of the island.

The case discloses much evidence, introduced by the demandants, tending to show that Gregory well understood that Peabody was the owner of the island, and that Philip Ulmer had the charge thereof as the agent of Peabody; and that, in addition to the contract given by the said Ulmer, and the notes of Gregory, he repeatedly recognized the right of Peabody as the owner of the island, and, as late as the year 1840, drove to Thomaston a yoke of oxen for the purpose of delivering the same to Ulmer, as part payment of the notes given as the consideration of the contract. Evidence was also introduced by the tenant, for the purpose of showing that Gregory repudiated the right of Peabody and of Ulmer to the island, and in explanation of the evidence adduced by the demandants.

Evidence was also introduced by the demandants to show that, at several times, some of the heirs of Solomon Peabody, and his widow, and the agent of the widow and the heirs, made entries upon the premises, by the authority of the heirs, with the intention of vesting the seizin in the heirs.

The tenant’s counsel requested certain instructions to the jury, which were given; other requests for instructions were not given, or were qualified, which his counsel do not rely upon in argument. These it is unnecessary now to consider.

The second and fourth requests, as they were presented, were, that the testimony of certain witnesses for the demandants, on which reliance was placed to show entries to interrupt the disseizin of the heirs of Solomon Peabody, after his decease, could not have such effect in law, so as to prevent the tenant from obtaining a- title in fee to the premises, by the continued adverse possession of twenty years before the institution of this suit.

The Court did not undertake to give a construction to the language of the witnesses, as .upon a written contract, and to determine the legal effect thereof, but instructed the jury that, if the heirs of Solomon Peabody, or by their authorized agent, lawfully entered upon the premises within twenty years after the disseizin of Peabody by Gregory, the seizin was thereby vested in the heirs, and the effect of such entry was to put an end to the ouster; and if Gregory, as a wrongdoer, still retained the possession after the entry, it was a new disseizin of the heirs. That, if the entry was made by one of the heirs, or by more than one less than all, or by the agent of one or more less than all, it is presumed to be in maintenance of the rights of all, in absence of all proof to the contrary. That, to constitute a legal entry, the party must go upon the premises with that intent. The mere going upon the land will not always constitute a legal entry sufficient to vest the actual seizin in those who have the l’ight. If, within twenty years after Gregory first disseized Solomon Peabody, the heirs of the latter, or their agent, duly authorized, went upon the premises with the intent of making the entry, and they then and there disclosed to Gregory that they came for such purpose, it would be a legal entry, and, if a legal entry was made within twenty years before the commencement of the present action, the defence under the general issue was not maintained.

The., third request was, that the same facts mentioned in the second request, cannot by law operate to deprive the tenant of the benefit of the provisions of the 34th chapter of the statutes of 1853, relating to betterments, to wit, an Act additional to c. 145 of the R. S. And the fifth instruction requested was, if the Court declined' to give the last requested instruction, in such case, he is requested to instruct the jury that such a possession would not be interrupted by the facts therein referred to, so far as to deprive the tenant of the benefit of the Act of 1853.

Under the third and fifth requests, the Judge remarked, that the actual possession mentioned in the statutes of 1853, c. 34, § 1, was a possession, which was open, notorious and adverse in its character, did not differ from that mentioned in the K. S. of 1840, c. 45, § 23, excepting as to the time of its continuance.

The sixth instruction requested was, that in estimating what Avould have been the value of the premises if no buildings had been erected, or improvements made, or waste committed, the jury should find what the value would have been, without that knowledge of the quality and value of the granite which the tenant’s improvements alone had disclosed, by opening the quarries and working the granite. The instruction requested was not given, but the jury were instructed that "they would estimate what would have been the value of the premises at the time of the trial, provided no buildings had been erected, or improvements made, or waste committed,” from all the evidence in the case, and they were instructed, that the foregoing was the rule of law which they would be governed by, and what effect they would give to the evidence was submitted to them to determine as matter of fact.

In addition, to the foregoing instructions under the requests, the Court instructed the jury that, if the writing of January 10, 1829, was executed by Philip Ulmer and delivered by him to Gregory, as the agent of Solomon Peabody, and Gregory knew at the time that therein Ulmer was acting as the agent of said Peabody, it is evidence that Gregory was holding in submission to said Peabody.

There is evidence ■ from deeds introduced that Solomon Peabody had title to the premises. There is none that Philip Ulmer had acquired any title. His contract to convey to Peabody is not evidence of a title in him. He was in possession of the premises, and, like the declaration of any other tenant in possession, his statements, going to limit or qualify his right arising from possession, was admissible to show the character of the possession. In connection with other evidence that Ulmer acted as an agent of Peabody, and that Gregory knew it, made the part objected to admissible with the other portion of the testimony upon that point. If the jury believed the evidence, Gregory held the relation to Peabody of having taken a contract to convey land to him on the fulfilment of the condition. And so long as such a relation continues, the authorities cited for the demandants, well establish the principle that the party holding such contract as valid, possesses the premises described therein, in submission to the one having the title. The evidence cannot be regarded as contradictory to the contract itself.

Much evidence was in the case, according to the report on the subject, whether an entry had been made on the part of the heirs of Solomon Peabody. The Court gave instructions touching the facts necessary to be proved to constitute an entry sufficient to vest the seizin. In Robinson v. Swett & al., 3 Greenl., 316, it is said by Weston, J., in delivering the opinion of the Court, "an entry into land to purge a disseizin should be made with that intention; and such intention should be sufficiently indicated, either by the act itself or by words accompanying the act.” "The intent may sometimes appear from the act; at other times from the declarations of the party, but when both are taken.together, it will be still more manifest.” Stearns on Real Actions, 43. "And when the entry is to be made upon land, the person who makes the entry may go upon any part of the land, declaring the purpose for which he enters.” Ibid, 43.

"In several cases the entry for one person may enure to the use of another. The case of joint tenants and tenants in common have been alluded to.” Stearns on Real Actions, 42; Means v. Wells, 12 Met., 356. These authorities sustain the instructions on this point.

The instruction giving the meaning of the statute of 1853, c. 34, § 1, cannot be held erroneous. This chapter is entitled "An Act additional to chapter 145 of the Revised Statutes.” "When the demanded premises have been in the actual possession of the tenant or those under whom he claims for six successive years or more, before commencement of the action, he shall be allowed- a compensation for the value of any improvements,” &c. R. S., 1840, c. 145, § 23.

By the statute of 1853, c. 34, § 1, it is provided, "and if the tenant claiming compensation for buildings and improvements, and making a request for an estimation by the jury of the increased value of the premises by reason there•of, shall also allege and prove that he and those under whom he claims have had the premises in actual possession for more than twenty years prior to the commencement of the action, the jury may find that fact, and, in estimating the value of the premises, provided- no buildings or improvements have been made thereon, by the tenant or those under whom he claims, shall find and in their verdict state what was the value of the premises at the time when the tenant or those under whom he claims, first entered thereon. And the sum, so found and stated, shall, for the purposes of the aforesaid chapter, be deemed and taken for the estimated value of the premises. And, in estimating the increased value of the premises by reason of the buildings and improvements, the jury shall find and in their verdict state the value of the premises, at the time of the trial, over and above the value thereof at the time when the tenant or those under whom he claims, first entered thereon. And the sum, so found and stated, shall, for the purposes of said chapter, be deemed and taken to be assessed for the buildings and improvements.”

A construction has long since been put upon the Act, which was substantially the same as that of R. S. of 1840, c. 145, § 23. And the "actual possession” as used therein was that which was adverse to the legal title. Knox v. Hook, 12 Mass., 329; Treat v. Strickland, 23 Maine, 237. And in the revisions of the statutes, when the same language had been substantially retained, the construction is to be treated as- adopted by the Legislature.

It is contended that, in the additional statute to that which has long been so familiar to the profession, the words " actual possession” does not mean a possession which is adverse, but one which has all along been the possession under a party having a title in fee. It is not easy to adopt a construction which may operate to produce the most flagrant injustice, and which shows such a poverty of language, that the Legislature could not find terms to make known their intention, without giving to words in the same chapter, which* are identical, a meaning wholly inconsistent with each other, and producing a result in one part diametrically opposite to that in another.

If a party owning lands has been disseized thereof, and that disseizin has continued for twenty years, compensation to the disseizee for his buildings and improvements is a simple absurdity. He obtains a title in fee. But there may be cases when a party has been in the adverse possession of real estate for a term much longer than twenty years, and he is still liable to be dispossessed, but not by the one whom he or those under whom he claims has disseized. When a person has title to an estate in lands for life, remainder to another, the former may have been disseized for more than twenty years; his right of entry is forever barred; but during his life the remainderman can have no right of action or right of entry. ’ These rights do not commence till the determination of the particular estate. When that is determined, the remainderman is by law admitted to his right of action, which cannot be resisted, unless it be upon other ground. For such and similar cases, it is apprehended, the statute of 1853, c. 34, was enacted. Whether it can be effectual or not in a case to which it may be applicable we give no opinion.

The sixth requested instruction, if given, would have restricted the value of the premises to the condition in which they were, when the "actual possession” as used in R. S. of 1840, c. 145, § 23, of the tenant commenced. If it had not been for such " actual possession” of the tenant, the intrinsic value of the island might have been as fully manifested as by the operations of the tenant. The whole matter was properly submitted to the jury under all the evidence in the case.

The motion that the verdict be set aside and a new trial granted, because the verdict is against law, against evidence and the weight of evidence, we will briefly consider.

On the questions touching the value of the buildings and improvements, and of the value of the premises, if no buildings or improvements had been made, or waste committed thereon, the'finding of the jury differs from the opinions of most of the witnesses introduced. But the facts on which these opinions were based were disclosed by witnesses, who had good opportunity of knowing such facts, and may be considered as an important element for the consideration of the jury in finding the value which they were to pronounce in their verdict; and we are not satisfied that the jury were under such influences as to make it the duty of the Court to disturb the verdict on this account.

It appears, from the evidence, that there are nine children of Solomon Peabody, who are the only heirs; that the demandants have the title of eight of them without dispute. It was supposed by both parties, at the time of the trial, that the interests of all the heirs were united in the demand-ants, and the vez’dict was rezzdered accordingly. Among the heirs was the sozi of the ancestor, William Peabody, who appears to have signed azzd sealed azz instrument, supposed to be a perfect deed, to Sarah N. Patten, one of the demandants, dated Sept. 10, 1844, but his zzame appears in no other part thereof, azzd it is denied that azzy portion of the premises passed by it.

No evidence was iiztroduced to show the death of William Peabody, and he mzzst be treated as living.

According to 2 Black. Com., 297, the matter of a deed must be legally and orderly set forth; that is, there znust be words sufficient to specify the agreement and bind the parties. It is not absolutely necessary, in law, to have all the formal parts that are usually drawn out in the deeds, so as there be sufficient words to declare clearly and legally the party’s meaning. In Catlin v. Ware, 9 Mass., 218, it is said by the Court, " a deed cannot bind a party making it, unless it contain words expressive of an intention to be bound.” We think the instrument is not operative as & ; deed to convey the interest of William Peabody.

Can the verdict be amended so that judgment may be rendered for that undivided portion of the premises which is the property of the demandants? This defect was unknown to the parties and their counsel at the time of the trial, as we understand from the arguments. It was supposed by both that if the demandants should prevail, it would be for the premises described in the writ, entire. But they must recover upon the strength of their own title. If the fact now disclosed was made known at the tidal, they could have recovered a verdict for that undivided portion of the estate to which they had proved a title, under R. S. of 1840, c.145, § 13.

The verdict furnishes all the facts which are necessary to make the correction in every respect. According to the authorities cited for the demandant, the verdict may be amended in conformity to the truth of the case as disclosed by the deed in which the defect appears. Clark v. Lamb, 8 Pick., 415. On the amendment being made, the exceptions and motion should be overruled.

Appleton, Goodenow, Kent and Dickerson, JJ., concurred.