Maxwell v. Mitchell

Appleton, C. J. This is an action of trespass quare clausum, in which the plaintiff may recover by showing title to or possession .of the premises upon which the trespass was committed. The plaintiff produced a deed bearing date and recorded prior to the time of the alleged trespass. The defendant offered to show that the deed was not delivered until after the date of the writ. This evidence was rejected. The plaintiff’s title accrued only upon the delivery of the deed to her, and if this was after the date of the writ (as we must now assume it to be), then the action was not maintainable. The evidence was, therefore, improperly rejected. But it is urged that possession is enough to support a suit of this-description. That is true. The exceptions, however, disclose no-evidence of possession on the part of the plaintiff. It is said that proof of that fact is to be found in the report of the evidence on the motion for a new trial. But that is not referred to in, or made a part of, the exceptions. The defendant does not [108] rely upon it, and it is overruled by consent. It is not, therefore, before us. Had a reference been made to the report in, or had it been made a part of, the exceptions, or had the exceptions disclosed that the plaintiff was in possession of the premises in controversy, and that that fact had been passed upon by the jury in her favor, she would have been entitled to the benefit of such possession. Upon the exceptions, as before us, the fact of the possession of the plaintiff at the time of the trespass of the premises in question, is not in proof. Exceptions sustained. WaltoN, DicKeesoN, Baeeows, DaNforth, and Yirgin, JJ., concurred.