Beach v. Sutton

The opinion of the Court was delivered by Baylies, J. The plaintiff, to make out colour of title, and to show the extent of his possession, gave the following deeds in evidence, viz : One from James Savage to Elisha and Horace Barber, dated May 29th, 1794, of six rights of land in St. George — one from Horace Barber to John Beach, containing a special covenant of warranty, and purporting to convey one half of said six rights of land, dated 10th October, 1794-, and one from John Beach to the plaintiff. dated in 1816, of a piece of land bounded north and east by Elihu Allen’s land, south by Reuben Place's land, and to extend west far enough for ninety acres. The aforesaid deeds were objected to by the defendants, and admitted by the Court, We consider, that the deeds were admissible evidence for the purpose for which they were offered : they were not pffered to make out a paper title ; but merely to show col-pur of title, and the extent of the plaintiff’s possession. Briggs & Sawyer, Attorneys for plaintiff. C. Mams, Attorney for defendants. ^18 Pontiff offered Horace Barber as a witness to prove the location of his pitch of 180 acres, and the west line thereof; and his taking possession, and making a clearing centre of said pitch. The defendants objected to his evidence, on the ground that he had given a deed of the land in question to John Tieach, containing the following covenant, viz : “ Hereby engaging to warrant, and forever defend the above granted and bargained premises to him the said John Beach, his heirs and assigns, from all persons claiming by, from, or under me, or the original grantee,” which made the said Barber interested in the event of this suit. But we do not perceive how this special covenant made Horace Barber interested : it is not pretended that the defendants, or either of them, held under him or his original grantee; so if the defendants had made out their defence, it would have been no breach of this covenant. In the admission of H. Barber as a witness, the County Court are supported by Twambly vs. Henley, 4 Mass. 441; and Busby vs. Greenslate, 1 Strange, 445. Upon the evidence in the case, the County Court sub-milted it to the jury to find whether Horace Barber did, on the 30th May, 1744, run the west line of said pitch, and soon after make a small clearing nearly in the middle thereof; and from that time for more than 15 years next after, (claiming in their own right) he, and others under him, held an open, continued, and exclusive possession of said pitch; and whether said west line was plainly marked on the ground, and was known and acquiesced in by all persons interested, as, and for the west line of said pitch, during said 15 years. If the jury found these facts, they would also find that said Barber, and those under him, acquired a title by possession to said pitch up to the west line thereof. These were the most important facts in the case, which were properly submitted to the jury for them to find; and they being found, the plaintiff establishes his title to said pitch, and to the west line thereof, by possession; and the defendants, by erecting their fence east of said west line, became trespassers upon the plaintiff’s freehold. Judgement of the County Court is affirmed.