Walsh v. Wheelwright

Emery, J. This was a real action for the recovery of a small parcel of land of about an acre in extent. One Harriet Pnng, the owner of an hundred acre lot, conveyed out of it this one acre to Edward Walsh by deed recorded in 1842. Eater, in 1845, Harriet Pnng conveyed the whole hundred acre lot to James Bartlett. This deed included the one acre previously conveyed to Walsh, and under this deed the defendant claimed the one acre which the plaintiffs, the heirs of Edward Walsh, demand in this action. The verdict was for the plaintiffs and the defendant brings the case to the law court on these exceptions to the ruling of the presiding justice. I. The plaintiffs claim title as children and heirs of Edward Walsh deceased who was seized in his life time. One of the plaintiffs, an heir of Edward Walsh, testified that Edward Walsh left a will, but could not say whether it had ever been probated in this state. There was no other evidence as to the will and none at all as to its contents or terms. — 186 — The presiding justice ruled that the testimony- as to the will did not bar or affect the right of the plaintiffs as heirs to maintain this action. When it is reflected that there is no evidence whatever that the will, even if probated, in any way, disposed of or referred to this demanded acre, it must be manifest that the evidence did not in the least tend to show want of title in the plaintiffs as heirs. II. To defeat the plaintiff’s seisin, the defendant undertook to establish by evidence an adverse possession of the demanded acre by himself and his predecessors in title for the requisite twenty years. To make out part of the twenty years he adduced the possession of one of his predecessors in title, Cornelius Wasgatt, from 1851 to 1867. Cornelius Wasgatt, after the conveyance to him of the hundred acre lot including the demanded one acre, put his brother, Thomas Wasgatt now deceased, in possession under a verbal contract to convey the whole lot to him when he should pay him the cost of the lot. Thomas did pay for the whole lot before his death but never took a deed from Cornelius. The only actual possession Cornelius ever had of any part of the hundred acre lot was this possession by his brother, and verbal vendee, Thomas. The latter occupied the whole lot generally as a farm, the one acre demanded, which was on the seashore, being included in the pasture which was surrounded by a fence on three sides and bounded by the sea on the fourth side. There was no other occupation of the demanded one acre than as a part of the pasture. As tending to show that the occupation of this one acre Avas not adverse to the record owner Edward Walsh, under whom the plaintiffs claim, they offered in evidence the testimony of Avitnesses to the folloAving effect, viz: 1 — that at one time during his occupancy of the farm Thomas Wasgatt \Aras standing by a large rock described in the deed to Edward Walsh as the corner bound of his acre lot, and said to the Avitness “that that rock [meaning the rock at the corner of the acre lot] corresponded Avith the record of a deed to Mr. Walsh that he had seen;” 2 — that at another time during his occupancy he A\ras sitting on this same rock talking Avith another Avitness sitting on — 187 — the road side, — that when told by the witness that this land by the rock seemed more fertile and was inquired of why he did not cultivate it, he said, “I don’t own this piece, nor never did. There is a piece of land laying here between here and the beach and that line of stakes out there which I don’t own.” That he further said the lot pointed out belonged to a shoemaker, and that the rock was the corner bound of the lot; 3 — that at another time during his occupancy he said to one of the sons of Edward Walsh who was there looking after his father’s interests that he would pay the taxes on this lot for the use of it. To this testimony the defendant objected on the ground that the declarations of Thomas, the tenant, could not prejudice the rights or interests of his landlord Cornelius, especially as they were not brought to the notice of the record owner and hence did not influence his action. The testimony however was admitted. The issue was the character of the occupation of this one acre lot during Thomas Wasgatt’s occupancy of the whole hundred acre farm under his brother. Was that occupancy adverse to the record owner? The burden ivas upon the defendant, and, to sustain it, he had put in testimony as to Thomas Wasgatt’s acts of occupancy. Had Thomas Wasgatt been produced as a witness by the defendant to prove occupancy, it can hardly be doubted that upon cross-examination Thomas could have been lawfully inquired of as to the extent and character of his occupancy. Had Cornelius "Wasgatt been the defendant, and pi’oduced Thomas as a witness to prove a similar ground of defense, he must have subjected him to cross-examination upon the character of his occupancy. It is to be noted that Thomas Wasgatt was deceased, that he was the person in actual occupation, and that he had a direct pecuniary interest in the land under his contract for purchase, and lienee that all the declarations testified to wei*e directly against his pecuniary interest. It is also to be noted that the first two declarations were made at the comer of the acre lot while viewing it, and the third declaration was made to the agent of the record owner who was there inquiring about the taxes. The declarations were certainly of some probative force as to the character of the possession or occupation of the land, and we think that — 188 — under the above combination of circumstances they were admissible in evidence upon that question. Tilomas Wasgatt, the declarant, was the person occupying. The acts of occupation were his. The declarations were made while he was in occupation and were concerning his occupation. They were made in the course of his business of occupation. Again, he ivas not the mere agent or tenant of Cornelius Wasgatt, under whom the defendant claims. He was occupying under a contract for purchase, which he fulfilled. He was occupying for himself. The occupation would inure to his own pecuniary benefit rather than to that of Cornelius. The declarations when made were more against his own pecuniary interest than against that of Cornelius. In Williams v. Ensign, 4 Conn. 456, one Cotton had been in the personal occupation of the land for fifteen years, but was deceased at the time of the trial. Each party claimed that Cotton’s occupation a vas under him or his predecessor in title. Cotton’s declarations while in occupation of the land, that he held under the defendant’s predecessor in title, were held to be admissible evidence. In Marcy v. Stone, 8 Cush. 4, 54 Am. Dec. 736, the defendant set up title by the adverse possession of Mrs. Healey, one of his predecessors in title. Mrs. Healey’s son was shown to have been in actual occupation of the land and to have deceased. His declarations on the land that he Avas occupying it under Mrs. Healey, his mother, Avere held admissible. In Currier v. Gale, 14 Gray, 504, 77 Am. Dec. 343, the defendant set up title by the adverse possession of Jacob 17. Currier (not the plaintiff) his predecessor in title. One Webster AAras shoAvn by the defendant to have been, in occupation of the premises for some fifteen years. Webster was deceased at the time of the trial and his declarations during his occupancy, that he occupied under Jacob 17. Currier, Avere held admissible evidence. In all these cases Avas cited Avith approval the case, Peaceable v. Watson, 4 Taunt. 16, Avliere it Avas held that the declarations of a deceased occupant of land stating, under whom he occupied as tenant Avere admissible. It is true these cases cited are not precisely in point in all particulars, but they fully sustain the principle that the declarations of a deceased occupant of land made Avhile occupying, in the course of his occupation, — 189 — as to the character of his occupation and against his own pecuniary interest, are admissible evidence. We think the principle includes this case. An answer to the defendant’s contention that the declarations of a tenant in occupation as to the character or purpose of his occupation should not be received in evidence against his lessor, is suggested by the case Mee v. Litherland, 4 Ad. & El. 784, (31 E. C. L. 179). In that case the defendant claimed a leasehold interest. The plaintiff’ claimed the leasehold interest had terminated by the attornment of the tenants, and to prove this produced an admission of the tenants to that effect. It was held that the admission of the tenants was evidence against the defendant since his title depended on theirs, and if their title failed his must also fail. In the case at bar the title of Cornelius Wasgatt, the defendant’s predecessor in title, depended on the occupation by Thomas Wasgatt. If that occupation was not adverse to the claimant by record, Cornelius acquired no title by such occupation. Declarations by Thomas Wasgatt deceased, made while in occupation against his interest as to the character of 1ns occupation, would seem to be evidence against all persons claiming title under that occupation even though such persons had no notice of such declaration. TI I. The recorded deeds under which the defendant claimed title included not only the demanded acre, but also a much larger tract within which the acre was situated and included. That the defendant and his predecessors in title had occupied that part of this tract, outside of the demanded acre, in the manner and for the time necessary to acquire title thereto by adverse possession, was conceded. The defendant contended that such occupation of the rest of the tract was constructively extended over the demanded acre, by the familiar rule that adverse occupation of part of a tract of land under a recorded deed presumably extends over the whole tract described in the deed as conveyed. The presiding justice overruled this contention and in effect instructed the jury that there must have been some adverse occupation of some part of the demanded acre itself to bring it within the rule above stated. To this ruling the defendant excepted. — 190 — The principle of the rule invoked by the defendant is, that when an owner of a parcel of land sees, or could see, any part of it in the adverse occupation of another person, he should assume such occupation to be under some claim of right and if that occupation be under a recorded deed to the occupant, the owner is bound to take notice that the claim of right extends over the whole parcel and that the occupation of part will affect the whole. When, however, the owner finds' that no part of his land is being adversely occupied, he has no occasion to assume or investigate anything. Recorded conveyances between other persons, even of his land if not followed by an actual adverse occupation of some part of his land, do not affect him. He is not required to take any notice of such conveyances. He is not required to take any notice from the occupation of adjoining lands that his land is claimed. His title to his own land is not affected by the most complete occupation of the adjoining lands. It is only when some part of his land is being adversely occupied that he is put upon inquiry or is affected with notice of recorded conveyances between other persons. Buswell on Adverse Possession, § 256; Bailey v. Carleton, 12 N. H. 9, 37 Am. Dec. 190; Turner v. Stephenson, 72 Mich. 409, 2 L. R. A. 277; Rite v. Tubbs, 23 Cal. 431; Hole v. Rittenhouse, 25 Pa. St. 491; Adams v. Clapp, 87 Maine, 316. It must be conceded that the language of the opinion of this court in Noyes v. Dyer, 25 Maine, 468, cited by the defendant, does, apparently at least, sustain his contention. There is in the report of that case, however, a suggestion of other evidence in addition to the occupancy of the adjoining land. The presiding justice instructed the jury that the occupation of the adjoining land, “with the other evidence in the case, if believed by the jury constituted a disseisin of .the demandant to the extent of the bounds of the lot described in the deed.” In the opinion is stated some little evidence of occupation of the demanded parcel though it had not been improved or enclosed. The decision of the court was, that upon all the evidence the jury might find the demandant to have been disseised of the demanded parcel though it had not been enclosed or improved. In the case at bar the ruling complained of was based upon the hypothesis, of which — 191 — there was some evidence, that there was no adverse occupation of any part of the plaintiffs’ land. So based, we think the ruling was correct, and so far as the dictum or opinion in Noyes v. Dyer, 25 Maine, 468, conflicts with that ruling we do not find it sustained either by reason or authority, and hence it must be considered as overruled. It cannot be that the owner of land, no part of which is occupied adversely to him, loses his title to it because one stranger lias included it in his deed to another stranger. Whether the hypothesis was the fact was a question for the jury. The defendant urges that the bill of exceptions in this case does show evidence of adverse occupation of the plaintiffs’ acre, in that it was within the defendant’s pasture undistinguishable from the rest of the pasture, the whole pasture being enclosed by a fence and the sea. The presiding justice, however, did not rule that there was no evidence of adverse occupation of the plaintiffs’ acre. He simply ruled that, unless the jury found there was some actual adverse occupation of some part of the plaintiffs’ acre, they could not extend over it the occupation by the defendant of other land within the same deed to which the plaintiff was a stranger. This ruling was correct. There was no request for a ruling upon the effect of the evidence stated. Exceptions overruled.