Williams v. Buker , 49 Me. 427 ( 1861 )

The opinion of the Court was drawn up by

Rice, J.

The evidence in this case is conflicting, and does not so preponderate in favor of the plaintiff as to authorize the Court to infer that the jury acted under a mistake, or were influenced by improper motives.

In relation to the exceptions: it was one of the first principles of the law applicable to real estate, as it stood prior to the revised statute of 1841, that he who was dis-seized could not, during the continuance of such disseizin, convey to a third person. If he attempted to convey, nothing passed by the deed. If the supposed grantee entered, he was a trespasser, and, having gained possession by his own tortious acts, he could not avail himself of his deed to render his continuance in possession lawful. Hathorne v. Haines, 1 Maine, 238.

The plaintiff could not therefore, on the hypothesis in her first request, derive any benefit from the Frith mortgage, or its assignment.

The second request was also properly withheld — the instructions upon that point being as favorable to the plaintiff as the law will authorize.

Motion and exceptions overruled.

Judgment on the verdict.

Tenney, C. J., May, Goodenow, Davis and Kent, JJ., concurred.