Executors of Stevens v. Hollister

[298] The opinion of the court was delivered by Redfield, J. The general rule of law, in regard to the right of the disseizee to maintain trespass quare clausum fregit against the disseizor, seems to be well enough settled; and the counsel for the plaintiff has not attempted to unsettle it. It is thus laid down by Blackstone, [3 Bl. Com. 210;] “Though a disseizee might have it [the action of trespass qu. cl. freg.~\ against the disseizor for the injury done by the disseizin itself, at which time the plaintiff was seized of the land, but he cannot have it for any act done after the disseizin, until he gained possession by re-entry, and then he may maintain it for the intermediate damage done; for after his re-entry the law, by a kind of just post liminii, supposes the freehold to have all along continued in him.” The rule is laid down in nearly the same terms in 4 Kent 119, and in 5 Bac. Ab. 166. Lord Coke, in his commentary upon Littleton, 257 a, says, “ The disseizee shall have an action of trespass against the disseizor, and recover his damages for the first entry, without any regress ; but after regress he may have an action of trespass with a continuando, and recover as well for all the mesne occupation as for the first entry.” And the text of Little-ton, Sect. 430, 256 b, is to the same effect. The only question, then, in the present case seems to be, whether there was any disseizin of the plaintiff. For if there were, it is not claimed, that he made any re-entry upon the premises before bringing the action, and it would therefore be error in the court below to suffer him to recover the intermediate damages between the disseizin and the bringing the action. There is considerable discussion in the books, how far certain equivocal acts of tenants, and of others in subordinate relations to the owner of the land, may by him be treated, at his election, as a disseizin. This is a concession made to the owner for the sake of the remedy, and to answer the purposes of justice. This part of the subject will be found very elaborately and very learnedly discussed in Taylor d. Atkins v. Horde, 1 Burr. 60, and in 2 Smith’s Leading Cases (Am. Ed.) 324, and notes. In the present case the defendant gave evidence tending to show that he was in actual exclusive occupation of the land, upon which the trespasses were claimed to have been committed, from the year 1834 until the bringing of this suit. And upon this point the court [299] charged the jury, that, if the plaintiff was first in possession of some portion of the land, claiming the whole and having a deed of the whole, he might recover of the defendant for every successive act upon the land, notwithstanding he (defendant) had cleared and actually occupied some portion of the land for a great number of years. We do not see how a clearer, more unequivocal ouster, eviction and disseizin could be described. No one will doubt, I apprehend, that such an actual occupancy of the land from year to year, if continued for the term of fifteen years, would give the possessor a perfect title, which would be absurd, if there had been no actual disseizin committed upon the plaintiff. The occupancy could not give a title by the statute of’limitations, unless it was such an unequivocal disseizin, as the owner1 was not at liberty to elect to treat as subsidiary to his own possession. The case is manifestly one of a positive, actual and notorious disseizin, and the plaintiff was entitled to recover only for the first disseizin, as a trespass, until he had made a re-entry upon the land. It is upon this latter ground, that the recovery was had in Butcher v. Butcher, 14 E. C. L. 59. The only remaining point in this case is in regard to the construction of deeds in the chain of the plaintiff’s title. Such cases are ordinarily of no practical importance to be minutely reported, for every case depends mainly upon its own peculiar circumstances and can only be a precedent for another case precisely identical in all its facts, which never occurs. In this case it is obvious, that all the deeds were intended to convey the same land, as all use the same terms of description, — which is, indeed, defective by omitting one line; but the earlier deeds referring to the survey of John Stark, which includes the whole fifty acres and does not seem to have been divided, it would, perhaps, be a more natural construction of the deeds, that all the land included in the survey was intended to be conveyed, although it is called “ forty acres ” instead of. fifty, — which is, indeed, the only thing raising a doubt as to the intention of the parties. We do not well see how the deeds could receive any other construction, unless they weye held void for uncertainty, — which a court will always feel reluctant to do after so long an acquiescence in the validity of the deeds and occupancy under them, as there seems to have been in the present case. [300] We do not perceive any error in the court below in giving a construction to the deeds, as to the extent of land conveyed, without referring the matter to the jury. There was no controversy in regard to the facts in the case. The matter was, then, a mere question of law as to what land was intended to be conveyed, the same as the construction of a written instrument in any other respect. The trial appears to have been in all respects legal and proper, unless the decision of the court below might have induced the plaintiff to omit giving evidence of a re-entry upon the land. If that is so, the case will be remanded ; otherwise the judgment will be reversed as to all the damages except one cent, and affirmed as to that. The plaintiff elected to have judgment affirmed for nominal damages, and the entry was accordingly so made.