Winslow v. Newell

The opinion of the court was delivered by Redi-ieed, J. In this case I do not understand that there is any pretence of recovering for betterments made by Goss under the Stewart title; for the jury have found that he did not suppose that deed gave him any title to the fifty acres, for which the defendant recovered in ejectment. There is, indeed, nothing in the case to show that Goss ever made any betterments on the’ lot, unless his put [168] ting up tile fences and occupying the pasture is to bear that construction ; — but, allowing that he did, he could not recover for them on the ground of the Stewart title, which he did not suppose extended to this part of the lot. , It seems equally clear, that the plaintiffs cannot recover for the betterments which they have themselves made, by resting upon the entry made by Goss, when Goss himself is found to have entered not supposing that he had any title to this part of the lot. It is somewhat questionable, perhaps, whether the plaintiffs can recover for betterments made by themselves, when no law existed giving them any such right, by referring their entry to a time anterior to that when it actually occurred. But however that may be, it is certain they cannot, by virtue of the entry of Goss, place themselves in any better condition, than that in which he was. It would be an anomaly, to permit the plaintiffs in this case to claim betterments upon the strength of an entry in bad faith, because they purchased it in good faith and made the improvements supposing they had a good title in fee, when in fact there was no law in existence giving them any right to recover on the strength of their own bona fide claim of title in fee, and the facts would not bring them within the provisions of the statute, by tacking their betterments to the one under whom they claim. The plaintiffs ought to be content, if the court suffered them to put the case both upon their own title and that of their grantor, although in one case the law failed them, and in the other the facts. All claim on the ground of the plaintiffs’ own entry and that of Goss being disposed of, it only remains to inquire, whether the plaintiffs can so connect themselves with Penfield’s entry upon this lot, as thereby to claim to recover, either for betterments made by him, or his servants, or tenants, or made by the plaintiffs in faith of his title and entry upon the lot. There may be some confusion in the statement of the case; and possibly the court, after all, do not get a correct understanding of it. But it would seem, that, if Penfield ever authorized any entry upon the land in controversy under himself, it was not persisted in, but abandoned. For we find, that neither Penfield, Lard, nor Emerson, ever entered upon this land, or made any claim to it, but expressly acknowledged the claim of the defendant. The plaintiffs purchased Penfield’s title upon the express ground that it was confined to the [169] other part of the lot; and they havp no claim of title to this portion of the lot, under Penfield. It is well settled, that if one enter upon land and occupy, and then abandon his possession, it cannot be tacked to that of the next possessor, for the purpose of making title to the land by possession. By the abandonment the possession is gone, for all such purposes. The fifteen years’ possession, necessary to give title, must be under one connected claim of title, although it may be by numerous persons, and may pass from one to the other by parol merely; still, it must be connected. So, too, in these betterment cases, .if one enter upon land by a tenant, or servant, — as Goss testified Penfield did, upon this land, by him, — yet if he afterwards abandon such entry, and do not convey it to any one, either by deed, or parol, it is impossible for one, who purchases the right of the tenant, who continues in possession under another title, which proves defective, to .eke out his own title by a resort to this first entry, upon the ground, that, at that time, the landlord supposed he had good title to this part of the lot also. For in this case it appears, that Goss finally surrendered to Penfield all right of possession under him, and Penfield abandoned all claim to this portion of the lot, and Goss continued his possession under another title, — which merged whatever former right he had. The difficulty in the plaintiffs’ justifying their putting betterments upon this lot, under Penfield’s entry by Goss, is, that they do not show that they have ever entered upon this portion of the lot under PenJield, or in faith of his entry, or of any entry under his title, — but the contrary. We think, therefore, the defendant is entitled to judgment on the verdict.