Bowker v. Walker

Royce, J. delivered the opinion of the Court. The general question submitted is, whether the plaintiff at the trial, made out a case which, if lupcontradieted, and not at all weakened by evidence on the other side, would entitle him to recover. The original title to the premises in question does not appear.. Ezra Sargeant, having.a colour of title under Ranny's deed to a tract including these premises, sold 130 acres thereof to Timothy Thompson, who entered and made improvements upon that part of his purchase lying north of the stream called William's river; the part on the south side, and being the 100 acres now sued for, remaining entirely wild. A difficulty is here presented in determining how far this possession affected the 100 acres, because we are not informed by the case whether the whole purchase of Thompson was surveyed, or inclosed within visible lines or monuments. That he claimed the 100 acres is certainly to be inferred from his purchase and sale of the same. In 1803, Thompson re-conveyed to Ezra Sargeant, who immediately deeded to Jabez Sargeant the whole tract claimed under Ran-ny’s deed. Jabez Sargeant thus acquired a colour of title, and tire possession of Thompson, whatever it was. At tire same time a connexion of some sort is discovered between Jabez Sargeant and the plaintiff, in relation to this property; the plaintiff having joined with Sargeant in the note to Thompson, and erected a saw mill on the 20 acres in dispute, which was doubtless done with Sargeant's consent. Under these circumstances the agreement between the plaintiff and Joseph Hoar was concluded under their hands and seals in January, 1807. In this transaction the consent and co-operation of Sargeant are distinctly seen; he having drawn up and witnessed the contract, and consented to hold it for the benefit of the parties. He could never after this have interfered to the prejudice of Hoar in violation of that agreement;— The entry of Hoar was by express permission of the plaintiff [24] under this agreement to purchase; and that he consideredhis possession as subject to the contract of purchase appears from the payments which he made. It follows in view of all this drat he could not have obliged the plaintiff to show a title to the land in an action for the possession. He could only fulfil his contract or surrender the possession. In saying this we do not go the whole extent of the cases cited for the plaintiff. The plaintiff must be equally entitled to recover against this defendant, unless his situation is different from that of Hoar. He is understood to have purchased in good faith for a valuable consideration, and without notice of any agreement or connexion between Hoar and the plaintiff. And hence it is contended that the agreement has no influence upon the property in the hands of the defendant, whatever it might have had while the possession remained with Hoar. It is certain, however, that the possession of Hoar is the main ground, if not the sole origin, of the defendant title ; and that possession was subservient to an acknowledged paramount right of the plaintiff. This being the character of the possession till within a few months of the defendant’s purchase, it is more than we can say, from what has yet appeared in the case, that in that short period its character was wholy changed. Hutchinson and Marsh, for plaintiff. Washburn, for defendant. We are not to enquire whether the agreement could be rendered invalid by reason of fraud, since no such inference necessarily results from the facts now in the case; nor whether a question may exist for presuming it abandoned or discharged by the plaintiff, from a conscious inability to make the title which he had stipulated to give. No such ground is yet disclosed, and if it were, the jury and not die court should make the presumption. We therefore think that the nonsuit was improperly advised and that a new trial must be granted. We have come to this result chiefly in reference to the larger tract demanded, and no opinion is expressed whether a new trial would be granted, were the 20 acres the only subject of dispute. New trial granted. . Hutchinson, J. being of counsel in the cause did not sit in‘the trial. ,