Smith v. Bodfish

The opinion of the Court was drawn up by Whitman C. J. The plaintiffs allege, that the defendant broke and entered their close, being township No. 3, range 3, west of Kennebec river in Somerset, and there cut and carried :away a certain quantity of timber; and have also inserted in their declaration a count in trespass, de bonis asportatis, for the timber so taken away. The defendant pleads the general issue, not guilty, in the first place, to both counts, and issue is joined thereon. He then pleads, specially, to the alleged trespass of breaking and entering the close, that the place, where the supposed trespass was committed, was in three several lots •in said township, Nos. 11, 12 and 13 ; and that the soil and freehold in said lots, was in one Burke; and that by license and permission from him, he entered thereon, and cut and carried away certain timber therefrom; and that this is the trespass supposed, in the plaintiff’s declaration, to have been ■committed. To this the plaintiffs reply, that the soil and freehold in the lots named, was in them, and conclude with a traverse. The defendant reaffirms the soil, &c., to be in said [293] Burke; and the plaintiffs join issue; thus leaving the affirmative, as to this issue, of proving the title in Burke, upon the defendant. But no evidence is noted in the report of the Judge, of any cutting, &c., as alleged, except in so far as it may be contained in the admission of the defendant, in his plea in justification. In strictness, therefore, the defendant should prevail; for his admissions, in one plea, cannot be admitted in aid of the plaintiffs on an issue arising upon another, containing no such admission. Harrington v. McMorris, 5 Taunt. 228. And it is sufficient for the defendant if he can prevail on either issue. But the parties would seem to have had in view the ascertainment of the title to the locus in quo as presented in reference to the issue upon the title ; and the defendant might have raised the same question under the general issue. Carr & al. v. Fletcher, 2 Starkie, 71 ; Rawson v. Morse, 4 Pick. 127. We may therefore proceed to consider it. As the general issue is pleaded and joined, the plaintiffs must be expected, in the first instance, to give some evidence of possession to entitle them to maintain trespass; and this they may be supposed to have done by the deeds of Joseph Philbrick, treasurer, &c., to tR. K. J. Porter, dated Dec. 25th, 1835, of nearly one half of the township, and of Porter to themselves of a large portion of that conveyed by Philbrick to Porter. This might be sufficient, if the defendant shows no semblance of ownership, and exhibits himself as a mere trespasser upon the rights of some one. For it would not be admissible for him, under the general issue, to object that the plaintiffs, by their own showing, were but tenants in common with others; nor, if he had no right to enter upon the land, should he be allowed to object, that Philbrick, who professes to convey as treasurer of the county of Somerset, had not observed the rules of law in making the sale. But the defendant is not in this predicament. He has exhibited evidence of title in Burke, under whom he entered, and cut and carried away the timber. He produces a deed [294] from one Dolbier to one Colby, dated April 8th, 1835, of the said three lots ; and then a deed from Colby to Burke of the same lots dated Nov. 27th, 1840; thus making out a title in Burke, such as will give the defendant a right to call upon the plaintiffs to show that Philbrick's deed was operative, and so as to make their title effectual against the title introduced in the defence. The defendant was also permitted to show, at the trial, that township No. 2, range 1, was taxed by the State and county, for the years 1827, 1828 and 1829 ; and that the taxes were paid. What the payment of these taxes had to do with lots No. 11, 12 and 13 in township 3, range 3, is not perceived. The deed relied upon by the plaintiffs, made by Philbrick as treasurer of the county of Somerset, contains a recital of his authority for making it. It sets forth, that a tax had been assessed on township 3, range 3, in the county of Somerset, by the county commissioners of that county, for the purpose of repairing a highway through that township, of one cent and four mills on each acre therein, not reserved for public uses, estimated to be twenty-three thousand four hundred and fourteen acres and five-eighths of an acre, amounting to nine hundred and twenty-three dollars; and that the same was duly certified to him for collection by the clerk of the courts for that county; and that ón the eleventh day of November, 1835, after having duly advertised the said order, and time and place, appointed for the sale of said township No. 3, range 3, he sold the whole of the said township, excepting the land reserved therein for public uses, and also twelve thousand two hundred and sixty acres thereof, owned or claimed by certain individuals (naming them) to said Porter, he being the highest bidder therefor, for the sum of nine hundred thirty-five dollars and seventy-five cents. Public officers, charged with the power of divesting individuals of their titles to real estate, in pursuance of provisions of law, made for the purpose, must, in their proceedings, be held to a strict compliance with such provisions. And when such officer, in making a deed of any such real estate, recites the [295] authority for so doing, as it is proper he should do; if his recital is proved to be untrue, and materially so, the conveyance must be held to be ineffectual and void, unless there be proof, aliunde. of authority to make it. On examining the record of the court of county commissioners, produced in support of the authority of Philbrick, to make the conveyance of the estate to Porter, it does not appear, that any such tax of one cent and four mills, per acre, amounting to nine hundred and twenty-three dollars, was imposed on the township in question. The tax appearing to have been imposed, according to the copy of the record produced, was eight cents and two mills per acre, amounting to nineteen hundred and twenty dollars. And instead of selling the whole of the township, excepting the reserved lands, by the deed it appears, that more than half of it, which belonged to, or was claimed by certain individuals, was exempted from paying any portion of the nine hundred and twenty-three dollars; and the residue was sold to pay the same. The treasurer could not exempt any portion of the township, except the reserved land, from its liability for the tax, unless owned by individuals, who had paid their proportions of the tax; and, regularly, it should appear, in order to authorize the sale of the residue, by the recitals in the deed, who had so paid previously to the sale, and the amount paid by each, and the quantity of land, on which each payment had been made. If, therefore, the tax intended to authorize the sale, was the nineteen hundred and twenty dollars, named in the record, and that sum had been reduced after the advertisement, and before the sale, by payments made by sundry part owners of the township, it should so have been set forth in the deed, or have been proved. But, if this difficulty were surmounted, there is still another, arising under the general issue. It is, that, if the deed to Porter could be considered as operative, and the admission of the defendant, that he cut timber on lots No. 11, 12 and 13, as contained in his special plea, could be available to the plaintiffs, under the general issue, still it would not appear that those lots were any part of the land embraced in a deed from [296] Porter to the plaintiffs; for the defendant, even in his special plea, makes no admission, that those lots were any portion of the land to which the plaintiffs pretend to give evidence of title. In the first place, it should be observed, that the deed of Philbrick to Porter purported to convey less than one-half of the township ; and the parcels excepted from the operation of that conveyance may, for aught that appears, have been held by the individuals named therein, in severalty ; and those three lots may have been parts thereof. Again — the deed from Porter to the plaintiffs, excepts quite a number of parcels, which he had previously conveyed, out of what was comprised in the deed to him, amounting in the aggregate to nearly one-half thereof; and those previous conveyances may have been, and it would seem probable from the dimensions of them, of parcels in severalty. And if so, the three lots might be parts of those, so disposed of by Porter. So, that under the general issue, the defence might be deemed complete, even on this ground. As the case is presented to us a nonsuit must be entered.