Eastman v. Fletcher , 45 Me. 302 ( 1858 )

The opinion of the Court was drawn up by

Davis, J.

The evidence in this case is somewhat conflicting. The demandant claims under two levies of executions, one against Fletcher, and the other against Fletcher and Blaisdell. At the time of these levies, the legal title to the premises was in Blaisdell. But Blaisdell held the title merely in trust, either for Fletcher or for his wife. The purchase money was paid by Fletcher, and the deed taken in Blaisdell’s name. It is uncertain whether the money really belonged to Fletcher, or to his wife. The parties seem to have made contradictory statements about it; but, though it is unnecessary for us to express any opinion in regard to it, the preponderance of testimony seems to favor the conclusion that, whatever the parties may at other times have said about it, the purchase money, in fact, belonged to Fletcher’s wife.

But, admitting that Blaisdell held the legal estate in trust for Fletcher, the levy upon it of the execution of Bartlett & al. v. Fletcher, at most, only passed the equitable title to the creditors. Russell v. Lewis, 2 Pick. 508; R. S. of 1841, c. 94, § 10. The interest acquired by such a levy is not sufficient to sustain a writ of entry. The demandant declares on his own seizin, in fee, and must prove a subsisting right of entry. R. S. of 1841, c. 145, § § 4, 5, T. To support these allegations, he must prove that he had the legal estate in the premises, at the time of the demise laid in the declaration. 2 Greenl. Ev. § § 303, 533; Howe v. Bishop, 3 Met. 26; Goodwin v. Hubbard, 15 Mass. 210.

In the case before us, if the demandant, by his deed from Bartlett and Carter, has acquired whatever interest Fletcher had in the premises, and the equitable interest was in Fletcher, his remedy is not by an action at law, but by a bill in equity. Shaw v. Wise, 10 Maine, 113; Houston v. Jordan, 35 Maine, 520.

The demandant also claims under a levy upon an execution in his own favor, against Blaisdell and Fletcher. But Fletcher and Blaisdell both testify that, before the commencement of the suit against them, the demandant had actual notice that Blaisdell held the land in trust for Fletcher’s wife, to whom the purchase money belonged. The demandant denies having had any such notice; but the testimony of Blaisdell and of Fletcher that the demandant had the deed in his hands long before that time, with notice that it was never delivered, and that he caused it to be recorded without any authority therefor, involves the matter in great doubt, as between the parties themselves. And, in view of the whole case, we are not satisfied that the demandant is entitled to recover. According to the agreement of the parties, a nonsuit must be entered.

Tenney, C. J., Cutting, May, and Goodenow, J. J., concurred.