Currier v. Gale

Dewey, J. We are not authorized to assume that the verdict returned for the plaintiff was so returned because the jury found that Sukey Currier was disseised at the time she made the deed to Mary C. Gale. Had this been the sole issue, or had this fact been specially found by the jury, it would necessarily have defeated the title of the defendant under that deed. But the plaintiff also denied the title of Sukey Currier, and this constituted a distinct ground of defence which was submitted to the jury. It becomes necessary, therefore, to consider whether the rulings of the court in reference to the title of Sukey Currier, and those under whom she claimed, were correct. The source of her title was David Currier, who it was alleged held the same, 1st, by a good paper title originating in a mortgage of the premises made to him by Molly Barnard. The ruling of the court as to the effect of a tender of the amount due on a mortgage, after there has been a breach of the condition, in discharging the mortgage title as a legal estate in the mortgagee, was erroneous. Such tender will not operate as a discharge of the mortgage. Maynard v. Hunt, 5 Pick. 240. Holman v. Bailey, 3 Met. 55. Erskine v. Townsend, 2 Mass. 495. Perhaps this ruling might have been treated as immaterial in the final result, as the jury have found that this mortgage was not [525] foreclosed; and if so, then the levy by Mosely was not well made, and his deed to Jacob R. Currier would convey no title. 2. The judge should have given the instructions asked by the defendant, “ that if Webster occupied under David Currier in his lifetime, the law would presume, in the absence of any evidence to the contrary, that he continued to occupy under Currier’s heirs.” If seisin is once proved, it will be presumed to continue until the contrary is shown. Brown v. King, 5 Met. 173. 1 Washburn on Real Prop. 52. Descent presents a case of privity of estate, and so the disseisin of the ancestor enures to the heirs. 2 Washburn on Real Prop. 493. Sawyer v. Kendall, 10 Cush. 244. The ruling asked for was proper, as bearing upon the title by an adverse possession continued for the period of twenty years, and also an earlier possessory title in the defendant than that relied on by the plaintiff. The defence was equally well maintained, if a prior possessory title was shown in David Currier, and the defendant could connect herself through Jacob R. Currier with it, whether such possession continued twenty years, or was only one year previous to the plaintiff’s possession. Such title by prior possession need not have been of such a character as would disseise the true owner, in order to give the superior right, as against one subsequently entering and claiming by no higher title than that by possession under such entry. It was quite sufficient, as against the title here relied upon by the plaintiff, to show an earlier possession by David Currier, and that Jacob R. Currier succeeded to the estate thus held by his father. Hubbard v. Little, 9 Cush. 475. It is true that the case seems to have been tried upon the assumption that it was necessary to establish an adverse possession of twenty years, in order to defeat the possessory title of the plaintiff, But whether applied to the one or the other of these grounds of defence, the prayer for instructions in the matter we have above stated was correct and should have been given. Exceptions sustained.