Hewes v. Coombs

Haskell, J. Writ of Entry. Plea, nul disseizin. Plaintiff must recover upon the strength of his own title; not upon the weakness of defendant’s. Chaplin v. Barker, 53 Maine, 275. He must show seizin and right of entry within twenty-years before the date of his writ. Ii. S., c. 104, § § 2, 4» When that is shown, plaintiff may recover, unless defendant shows a better title in herself, not in another, under whom she* does not claim. Title in another may be shown to rebut plaintiff’s seizin within twenty years. A deed from the plaintiff to a stranger, within that time, under whom the defendant does not-claim, would not do it; but a deed from the plaintiff to such; stranger more than twenty years prior to his writ would do it because, having parted with his title before the twenty years-began to run, he would not have been seized within the twenty-years, a prerequisite, under the statute, for the maintenance of' a writ of entry against anybody, even a trespasser in possession, without any pretense of title. Walcott v. Knight, 6 Mass. 418 ; Shapleigh v. Pillsbury, 1 Maine, 290; Stanley v. Perley, 5 Maine, 369; Bussey v. Grant, 20 Maine, 281; Wyman v. Brown, 50 Maine, 144; Morse v. Sleeper, 58 Maine, 335-6. The plaintiff claims as heir of the grantee in a quitclaim deed, given in 1846, by defendant’s husband, who then owned the property, a small farm on which he lived. That husband did not surrender the possession, but retained it from that day until his death, in 1882, almost forty years. After giving the deed, [436] he was presumed to retain his possession as tenant of the grantee; but- that presumption may be rebutted. It may be shown that he did not so retain it; It may be shown, and we think it is sufficiently shown to l’ebut the contrary presumption, that he immediately repudiated his deed and became a disseizor of- the plaintiff, and thereafterwards held the land openly, exclusively and- adversely, until he died. Such .disseizin, by arbitrary rules, of law, continued for twenty years, worked a seizin, that is, a title; and, if that-title became complete more than twenty years before ■ the plaintiff brought his writ, it rebutted the plaintiff’s seizin within twenty years, the same as a deed would have done. The twenty years began to run in 18-70. The deed was given in 1846, twenty-four years earlier. The plaintiff’s ancestor, after he took the deed, never claimed the land. He soon departed from the neighborhood and never returned. Defendant’s husband lived there and paid taxes and treated the property as his own until he died. His conduct was inconsistent with a submission to title in another. Possession has been retained by him and his family for more than forty years. After a careful-consideration of the evidence, and the inferences to be drawn from it, the court considers that defendant’s husband’s presumed submission to the- title of his grantee is rebutted; and that the husband acquired title by disseizin to the land more than twenty years before plaintiff brought his writ, whereby his proof of seizin, within twenty years, is destroyed, and his action defeated, although the defendant may not have shown any title in herself. Her right, if any, is the inchoate right to dower, yet unassigned. Judgment for defendant. Peters, C. J., Walton, Virgin, Emery and Foster, JJ., concurred.