Connor v. Pushor

Walton, J. This is a real action to determine the title to a small piece of land (about one fourth of an acre) lying on the easterly bank of the Sebasticook river in the town of Pittsfield. The decision of the cause ultimately turned upon an alleged want of title in the plaintiffs. At first the defendants undertook to set up a title in themselves by adverse possession ; but the evidence was too weak, and this ground of defense wasabandoned. The defendants then undertook to show a want of title in the plaintiffs. The plaintiffs, as the heirs-at-law of their father (H. B. Connor) had a record title extending back to 1835. But the defendants claimed that sometime during the year 1835, H. B. Connor conveyed the demanded premises to one Thomas McCausland, and that McCausland conveyed them to a Mrs. Chase. No deed from Connor to McCausland was produced, and no such deed had ever been recorded; and, so far as appeared, neither Mrs. Chase, nor any one claiming under her, had ever taken possession of the land or claimed to own it. But the defendants insisted that a deed from Connor to McCausland had once existed and that it had been destroyed in 1871 or 1872, by a fire which burned McCausland’s house : and they undertook to prove by oral evidence the existence of the deed, and its loss, and its contents. But the evidence was weak and the jury returned a verdict in favor of the plaintiffs. The defendants move to have the verdict set aside as against evidence. We do not think the motion can be sustained. We have examined the evidence with care, and we are by no means satisfied that the verdict is wrong. The defendants urge that the jury were misdirected with regard to the amount of evidence necessary to establish the existence and contents of a lost and unrecorded deed. We think not. True, they were instructed that the evidence should be clear, convincing and satisfactory. But we think this instruction was correct. The plaintiffs had an unbroken record title extending back for over half a century ; and the presumption in favor of record titles is so strong that it requires strong, [303] clear and convincing proof to overcome it. This requirement does not militate against the rule that in civil suits a preponderance of evidence is all that is necessary. When an attempt is made to batter down recorded deeds by oral evidence of non-existing and unrecorded deeds, the oral evidence must be clear and strong, satisfactory and convincing, or it will not preponderate. It must be "plenary.” So held in Moses v. Morse, 74 Maine, 472. The rule is the same when the deed is claimed to be inaccurate. The error must be established by proof that is plenary. Purlin v. Small, 68 Maine, 289. In the case last cited the court say that a deed, which can be seen and read, is a wall of evidence against oral assaults; and can not be battered down by such assaults, unless the evidence is clear and strong, satisfactory and convincing. And, surely, duly recorded deeds, which have remained unchallenged for more than half a century, are entitled to an equal degree of protection. We think the ruling was none too strong. Motion and exceptions overruled.