Wickham v. Conklin

Per Curiam. The ground of the action consists in the charge of unlawful maintenance, in carrying on the ejectment suits. But if the defendant had any interest, legal or equitable, in the land, which was the object of the suits, there was no foundation for the charge of maintenance. (2 Roll. Abr. 115. g. 117. Hawk. tit. Maintenance, s. 12, 13. 17, 18.) The defendant and Herrick purchased of Charles A. Tucker, his interest, as heir to his brother John, in the military bounty lands, and took a deed, regularly drawn and executed, and paid 5 dollars down, and gave a bond for 45 dollars, to be paid, on condition that the title, so granted, prevailed. This deed was taken in the name of W. D. Williams, but on their joint account. The defendant had then an equitable interest in the land, and if any interest passed, Williams took it as trustee for the joint concern. This deed was given in June, 1806, and it was valid and operative, unless the land to which it related was held at the time adversely. It was incumbent upon the plaintiff to make out this fact affirmatively and clearly, if he meant to destroy the operation of the deed on that ground. There is certainly no sufficient evidence of the existence of that fact at the date of the deed.. There is no evidence that [228] Bailey and Davis were on the land as early as June, 1805. They were, afterwards, in possession, and held under the plaintiff; but the plaintiff’s deed from Tucker was as late as 1808, and he did not show any other source of ti- • tie. There were some loose sayings, that some person was on the land when the deed was taken, but who it was, or, under what claim or title, did not appear. It will not do to declare a deed void, upon such light and equivocal testimony of adverse possession. The adverse possession ought to have been made out, by positive facts, and not by mere inference or conjecture. If the deed of June, 1806, was not absolutely void, then the charge of maintenance falls to the ground, and the plaintiff ought to have been nonsuited, in pursuance of the motion made at the circuit. But if the deed did not operate, by reason of the adverse possession, yet the testimony does not make out the crime of maintenance, in the strict legal sense. The defendant did not officially intermeddle in the prosecution of another’s right, but he was undoubtedly prosecuting this suit for his own benefit. He may have purchased a pretended title, scienter, so as to have subjected himself to the penalty given in the 8th section of the statute, but that is not the offence charged. Maintenance, strictly speaking, is the assisting another person in a lawsuit, without having any privity or concern in the subject. There can be no doubt that the defendant was using the, name of Tucker, as a mere nominal lessor, not for the benefit of Tucker, but as a trustee for his own benefit, and that of the other persons connected with him in the purchase. In no view of the case, then, does the charge appear to be made out; and, without attending to other-objections which were made upon the argument, there must be judgment of nonsuit entered, according to a stipulation in the case. Judgment of nonsuit.