Rogers v. Hillhouse

Hosmer, Ch. J. The controversy between the parties, respects the title to the land, on which the trespass is declared to have been committed. The plaintiff claims title from Elisha Lathrop and others, by deed from him to Simon Lathrop, from whom the estate descended to Martha Cogswell, a feme covert. She, with the consent'of her husband, devised the estate to certain of her children and grand-children, who granted it to Ebenezer Devotion, and he, by deed of bargain and sale, conveyed all the described tract, except ten acres, to the plaintiff; and the ten acres he released to him, by deed of quit-claim. The defendant, not admitting the legality of the last-mentioned deed, insists, that he, and those under whom he claims, have been in the adverse and uninterrupted possession of the premises,- for more than fifteen years. A necessary link in the chain of the plaintiff’s title, is a deed of release, in which the only consideration is thus expressed ; “ for divers good causes and considerations.” Two questions arise on this point ; whether the above deed is valid, as no consideration is definitely set forth ; and if it is valid, whether the charge of the judge is not defective, inasmuch as he merely informed the jury, that a quit-claim deed might be good without consideration, but did not state to them, whether the deed of release in question, was of legal sufficiency. That a deed of quit-claim, is a conveyance at common law, and valid without consideration, is now admitted. 4 Cruise’s Dig. 24. 1 Cruise’s Dig. 409. But, as this was a question seriously made and agitated at the circuit, it became the duty of the judge to express his opinion upon if to the jury. He informed them, that “ the deed might be good without consideration,”—and this is all that the motion states; nor are we authorized to conjecture on this subject, in the face of the statement, which the judge allowed, and which, we must believe, comprised the whole instruction given to the jury. Was this equivalent to the information, that the deed of release was valid ; and did the jury so understand it ? I think it was not; that the jury did not thus understand it; and that, at [403] least, it left the subject in a light extremely equivocal, jury, instead of knowing that the deed was valid, if they gave the popular and accustomed force to the language addressed to them, were left to form their own opinion on this.all-essential point. Were I to propose the question, Is a certain act legal, and to receive a reply, that it might be so, I should not consider myself possessed of the speaker’s opinion. The answer would break off in the middle, and leave the mind in expectation of something more. I should listen to hear the reason why the act might be, and was not, legal. In short, the sentence would be imperfect; unadapted to convey an opinion ; and calculated to announce a doubt, or to waive an answer to the question put. The phrase, so far as it goes, is in the potential mode, which merely declares the possibility of action or being •, and is commensurate with the expressions— it may be, or it is possible,—and to nothing more. On this point, I have no imaginable doubt. The construction I have given to the language used by the judge, is not rigorous, but results from the grammatical and popular import of the words. A charge is ever imperfect, unless it conveys the intended sentiment so clearly, that men of ordinary sense and talents, may be presumed to be acqaainted with the opinion of the speaker. The To the title of the defendant, founded on the adverse and uninterrupted possession of the premises, for more than fifteen years, several objections have been made. The court admitted, in evidence, an unacknowledged deed, and the record of a judgment, to shew, that the persons under whom the defendant claims, were in by disseisin—thus to support his title, by exclusive and adverse possession. Adverse possession is a possession under colour and claim of title. 9 Johns. Rep. 179. 180. Any evidence, conducing to prove, that the possession was accompanied with a claim of title, and that it was the intention of the possessor, to hold exclusively for himself, was undoubtedly admissible ; and of this character is the testimony objected to. The foundation of the objector, is placed in a misconception of the purpose, for which the evidence was admitted. It was not adduced to establish a title, by force of the unacknowledged deed, or of the judgment between other parties; for to this end, it unquestionably would be incompetent. But it was good proof, to shew the [404] nature of the occupancy, and that it was adverse. Even pa-rol declarations, accompanying an entry, or a subsequent act, have been held good evidence, to evince the character of á possession. Jackson d. Youngs & al. v. Vredenbergh, 1 Johns. Rep. 159. Co. Litt. 374. a. The plaintiff also insisted, that notwithstanding the adverse possession, under which title was claimed by the defendant, commenced during the life of Simon Jjxihrop, yet as Mrs. Cogs-well, who took from him the estate by descent, was a feme covert, at the time her right of entry first accrued, and continued so until her decease, her heirs might enter at any time within five years after the removal of this disability. The judge charged the jury, that the statute having begun its operation, in the life of Simon Lathrop, would continue to run, notwithstanding the coverture of Mrs. Cogswell. Of the correctness of this opinion, I cannot entertain a doubt; nor will I enter into the discussion of a point so fully established. Under the statute of Fines, as well as the statute of 21 Jac. 1. c. 16. and our own act of limitation, this construction, so essential as it is to effectuate the intent of the laws referred to, has invariably been given. Stowell v. Lord Zouch, 1 Plowd. 356. Doe d. Duroure v. Jones, 4 Term Rep. 300. Bunce v. Wolcott, 2 Conn. Rep. 27. On the whole, I am persuaded, that justice has been done to the plaintiff, in relation to all the matters complained of, except with respect to the imperfect charge of the judge, in regard to the deed of release ; and on this ground, solely, I would grant a new trial. <