Blood v. Wood

Shaw, C. J. In an action of trespass quare clausum fregit, the question is, supposing the plaintiff has proved a good title by deed, whether she was disseized at the time of the alleged trespass.' A preliminary question ivas indeed suggested, but not much pressed, founded on the fact, that although the plaintiff’s deed purports to have been executed in 1834, it was not registered until October, 1839. But as no other title, derived from the same grantor, intervened, the want of registration is immaterial, and it is sufficient that it was registered at any time before it was offered in evidence. The question of disseizin, when it is set up to defeat the possessory interest of the true owner, and where the owner does not elect to treat himself as disseized, for the sake of his remedy, is one of considerable difficulty, depending upon technical law, and in regard to which the authorities are in some conflict. The cause has been ably argued on both sides, and the authorities carefully examined. There is no doubt that if the plaintiff was disseized, and so continued at the time of the alleged trespass, the action will not lie ; but the question is, upon the facts, whether she was so dsseized. The disseizin is placed upon two grounds : 1. The levy of the execution of Davis upon the premises as the estate and property of Meriam, which, it is insisted, vested the seizin de facto in Davis, and operated as a disseizin of all others. 2. The [534] actual entry under a claim of title, openly advertising and selling the crop, and the taking and carrying away of the crop of grass under a claim of title. As to the first ground, it is undoubtedly now well settled, that the levy of an execution, under the statute, vests an actual seizin in the creditor, and ousts the debtor ; so that the creditor may enter and retain possession as against the debtor, or may maintain trespass against him, or maintain a real action counting on his own seizin. Gore v. Brazier, 3 Mass. 523. But the consequence of the creditor being seized by force of the levy, and delivery of seizin by the officer, follows only in case the land was liable to the extent, and belonged to the debtor at the time of the levy. If it did not belong to the debtor, the officer acted without authority. In the leading case on this subject, Gore v. Brazier, it is stated that if the right owner be dispossessed, the act is tortious, and he may maintain trespass against the creditor and the sheriff, or he may bring his writ of entry against the creditor as a disseizor. Now it is very obvious that if he could bring trespass, he is not absolutely disseized ; for, if disseized, he cannot maintain trespass, till reentry. It is also added, that he may have his writ of entry against the creditor, as a disseiz- or ; that is, he may elect to consider himself disseized, for the sake of his remedy, and with a view to try his title with the execution creditor ; and the creditor, having elected to levy on the estate, and take seizin of the officer, would be estopped to deny the legal consequences of such act. The levy may be considered, as between the parties, as devesting the seizin of the debtor, and giving seizin to the creditor, but has no effect to disseize any other person, who is the true owner, unless accompanied with such acts as would amount to an actual ouster. Bott v. Burnell, 9 Mass. 96. 11 Mass. 165. 2. Then the question is, whether the acts detailed in the report, independent of the supposed legal effect of the levy, constituted such a disseizin of the owner as to compel her to enter, before she could bring an action of trespass. In one respect, the levy of an execution, if returned and recorded, may have the same effect as a deed recorded, in ascertaining the extent of a dis [535] seizin. If a party, without claim of title, does acts amounting to an actual ouster, it will ordinarily operate as a disseizin only to the extent of such actual ouster; but if he enter and do the same acts under color of a deed recorded, such deed, being evidence of his intent, may qualify the act of ouster, and operate as a disseizin of the whole parcel expressed in the deed. The levy of an execution being in this respect alike matter of record, may have a like effect. Still the question recurs whether the acts stated amount to a disseizin ; and this depends not upon the levy in the one case, or the deed in the other, but on the nature of the acts themselves. Instead of undertaking to give a definition of disseizin, I prefer referring to the cases- where the subject is discussed and an approximation towards an exact definition effected. Proprietors of Kennebeck Purchase v. Springer, 4 Mass. 416. Brimmer v. Proprietors of Long Wharf 5 Pick. 131. Poignard v. Smith, 6 Pick. 172. S. C. 8 Pick. 272. One point seems to be well settled, which is, that very strong acts of exclusive possession, such as building, enclosing, or cultivating, and that for a long time, and openly and notoriously, are necessary in order to constitute an actual ouster of the true owner who has no notice of such acts. The premises, in the present case, consisted of unenclosed meadow land, part of a large tract, used only for mowing. The plaintiff had disposed of the grass the two or three previous years, and had the actual possession, prior to Davis’s levy of execution. That levy was made in January previous ; so that he had taken no crop, at the time of the supposed trespass. He entered upon the premises two or three times, to show the grass, but took no actual possession. The grass was advertised, hut it n as advertised as the growth of a tract of meadow belonging to Davis, and would give the plaintiff no notice of any intention to sell the grass of her meadow. The actual sale at auction was made at the road, a quarter of a mile distant from the land. The court are therefore of opinion, that this evidence falls far short of proving an actual ouster of the plaintiff, and therefore [536] that she had the right of possession as well as the better title, and might well maintain this action. The fact last stated in the agreement, that the plaintiff for many years lived in the family of Davis’s debtor, Meriam, appears to be immaterial. If it was intended to rely on the point that she held it fraudulently, upon a secret trust for Meriam, and to insist on the validity of Davis’s levy upon the premises as the estate of Meriam, supposing a levy could be made under those circumstances, that ground should have been distinctly taken and the facts fully set forth, and tried by jury. Judgment on the verdict