Robison v. Swett

Weston J. An entry into land, to purge a disseisin, should be made with that intention; and such intention should be sufficiently indicated, either by the act itself, or by words accompanying the act. Coke Lit. 49, b. 255, b. The act of Col. Thomas Poor, in riding along the public highway, which passed over these lots, [325] and there making inquiry about them, seems to have none of the properties of an entry of this description; and this point therefore, though taken at the trial, has not been urged in argument. Certain objections are made in this case to the competency of a part of the testimony. A release having been given to Enoch Perley, by which his interest was removed, his competency as a witness was thereby restored. Evidence of the institution and prosecution of former suits, in relation to the title now in controversy, although by no means conclusive, and certainly open to explanation, was in our opinion admissible, as tending, in connection with other circumstances, to shew a knowledge on the part of Swell, and those from whom his title is derived, of the nature and extent of the plaintiff’s claim. The deed from Kimball and others to Thomas Robison, the father of the plaintiff, although not received as evidence of title, was admitted to shew the extent of the plaintiff’s claim. That a deed from a party not having title, if duly registered, and if the grantee enter upon the land under his deed, and continue openly to improve and occupy a part of it may, in connection with such occupation, be considered as a disseisin of the true owner, is admitted as law, both in the case of Little v. Megquier and the Proprietors v. Laboree, cited in the argument. The tenant in such case, entering under claim and color of title, is regarded by the law with more favor than a mere naked disseisor, and is therefore entitled, as to all the land described in his deed, where there is no opposing possession, to the full benefit and protection of the statute of limitations. The jury in this case having found, under the direction of the Judge, that Robison the elder did go into possession of the land under the deed in question, and did continue to occupy it, the deed in our opinion, being duly recorded, was properly admissible as evidence of the extent of the plaintiff’s claim. The presiding Judge instructed the jury “that, if from the “ whole evidence, they believed that Robison went into posses- “ sion under his deed; that he had maintained a continued posses- “ sion exclusive and uninterrupted, and that however Thomas “ Poor might complain, he never did actually interfere with the “ possession of the lots, they would return their verdict for the [326] “ plaintiff.” This direction does not appear to us to be at vari-anc.e with the principles of law, or of adjudged cases. Whether the jury ought thus to have found, is not one of the questions before us. No motion to set aside the verdict as against evidence, if made, could be sustained, as it appears that a part only of the evidence is reported in this case. The deed, from which the plaintiff has deduced his title, had been executed for nearly forty years, prior to the commencement of this action; the grantee had exercised acts of ownership under it; these facts were known to those under whom Swett, one of the defendants, claims; and no entry was made, or opposing claim effectually set up by them against the plaintiff’s title. It might be a question whether, if the case required it, legal presumptions, under these circumstances, in aid of a deed so ancient, might not, in accordance with precedents, be resorted to; but upon this point we give no opinion. The motion for a new trial is not sustained, and judgment is to be entered on the verdict. Note. The Chief Justice, having formerly been of counsel, did not sit in this cause.