Price v. Lyon

Sherman, J. The defence in this case, was grounded on the title of Eliphalet Lyon, one of the defendants, to a pro — 288 — portion of the pew. He claimed to have become vested with the titles of two of the heirs of John Jennings, under whom both parties claimed, and whose title was admitted. Joel Jennings, a son and heir of John, attempted to convey his title to Walter Bradley, by the writing bearing date Januury 1 lth( 1811 ; and in 1814, Bradley indorsed upon it, an assignment to Lyon. It was correctly stated in the charge to the jury, that these instruments were ineffectual; first, because they lacked the solemnities required by law for the transfer of real estate by deed ; and secondly, as Bradley, at that time, was not a member of the society, Joel Jennings could not convey the pew to him, by reason of the condition annexed to the title, by the vote of 1761 — under which the purchase of the pew was made of the society — prohibiting a conveyance to any person not a member, or belonging to another denomination of Christians. The objection taken by the plaintiff to the title of Mary Heron, who was a daughter, and the other heir of John Jennings, under whom Lyon claimed another undivided right in the pew, was properly overruled by the court. It was immaterial whether she was a member of the society, or not, at the death of her father, or afterwards. The vote of 1761 is to be construed not as a law, but as a contract. It is not competent to the court to add to its provisions, in order to effect its supposed object. It provided, “ that the spots or places, and the pews so built, shall not, by them who purchase as aforesaid, or by their heirs or assigns, be ever sold or conveyed to any person, that doth not, at the time of conveyance, belong to the society, or to any one of another persuation or denomination.” If a purchaser, taking the estate with such a condition annexed, would be thereby disabled from making a conveyance in violation of it; yet it would not, in its terms or effect, prevent a transmission from the ancestor to the heir. Such a transmission is in no sense a sale or conveyance, and is, therefore, not within its terms. But were it ever so clearly embraced, it could not prevent an inheritance by the heir ; for that must be regulated by the canons of descent. It would be as ineffectual as a provision that an estate should, in all future time, descend to the oldest or youngest son, or that any particular class of persons should be forever incapable of inheriting. But the instrument executed by — 289 — William and Mary Heron to Lyon, on the 3rd of October, 1811, not having the legal requisites, conveyed no title. Lyon, however, claimed to have entered under these instruments, and to have continued his possession to the time of the trespass; which, from the date of the latter instrument, was a period of about twenty-eight years, and twenty-five from the assignment of Bradley; and during these periods respectively, to have held adversely to Joel Jennings and Mrs. Heron. If a title was acquired by Lyon, it must be by virtue of the desseisin. To this the plaintiff objects, on the ground that the possession of one tenant in common is the possession of both ; and therefore, as the other heirs of John Jennings, and those claiming under them — of whom the plaintiff, in right of his wife, was one, — occupied during the time when Lyon claims to have been in possession, that possession could not be a disseisin of Joel Jennings and Mrs. Heron ; as they were in, by the plaintiff and the other tenants in common. It is generally true, that as between tenants in common, the possession of one is the possession of all. As each may rightfully possess the whole, liable to account, such possession is not a disseisin of his cotenants. But when a stranger enters on the common property, claiming title adversely to one of the tenants, and actually excludes him from the possession, and takes the profits, this is a disseisin. He takes the place of the excluded proprietor, by becoming, in fact, the cotenant of those with whom he holds, and their possession is no longer that of the disseisee. The disseisor usurps his relation, as well as his place. By such a disseisin a tenant in'common may be divested of his interest, as well as a tenant in severalty. But the plaintiff contended, that as Lyon, in 1820, ceased, by his certificate, to be a member of the society, his possession was unavailing, as he had not the qualifications to acquire a title, made necessary by the vote of 1761. To meet this objection, the defendants offered the copy of a paper, certified by “ G. Wakeman, clerk,” dated in 1824, by which he reunited himself to the society, in the form prescribed by statute. To this copy the plaintiff objected, on the ground, that the original was not a document of which the clerk of a society could give an official copy, and that the attestation was not in proper form, as he certified as clerk only, without stating in — 290 — what society orkody he held that office. But we consider a of membership, lodged with the clerk of an ecclesi- ‘; 1 0 ... astical society, as a public document of the corporation, which ought not to be removed, but remain perpetually on file. . It is from-such documents that the members are designated ;'and by them only can the right of suffrage and the liability to taxation be shewn. Such a-certificate of membership,'“ .unless a majority shall, at their, next meeting, manifest their dissent,” becomes, by statute, conclusive evidence of their assent, and as such, supplies the place of a recorded vote. The act for the regulation of civil actions, sect. 51. provides, that “ when the clerk of any court, town, society or corporation is absent,” &c., “ the files, records, votes and proceedings of such court, town, society of corporation, may be proved, in any court of law, by copies examined and sworn to, by credible witnesses clearly implying, that such files, &c., might be exemplified by the clerk, if not absent or disabled ; and that the powers of clerks of societies, in this respect, are coextensive with those of courts, or of any corporations. The signature is sufficiently formal, and according to the common usage in this state. But this proof of membership was all unnecessary. The opinion expressed, by the judge, in his charge to the jury, that although the possession of Lyon, during the time he was not a member of the society, might be computed, yet he could not become vested- with a title in the pew, by adverse possession, unless he was a member at the expiration of the fifteen years, was more favourable to the plaintiff than the law would warrant. Lyon was a disseisor, and never assented to the vote of 1761. He claims under no deed of which that forms a condition. He might acquire a title by adverse possession, against the society itself. The title of a disseisor does not imbibe the provisions and limitations in that of the disseisee. “ A disseisin of an estate for life,” says Hobart, “ by necessity in law, makes a quasi fee ; because wrong is unlimited and ravens all.íhat can be gotten, and is not governed by the terms of the estates, because it is not contained within rules.” Hob. Rep. 323. Although Lyon entered claiming title under the conveyances from Joel Jennings and Mary Heron ; .yet this is evidence of nothing more than that he held adversely to them. He derived no title .from those conveyances. The — 291 — Saw, to ascertain his rights, looks only on an unwarranted and forcible disseisin for the period of fifteen years, made in defi-anee of all the conditions and qualifications annexed to the estate of the disseisees. The title of the disseisee is not acquired by possession, but lost by disseisin. There is no presumption of a grant. The fifteen years adverse possession, simply, annihilates the title of those, who, during the time, had a right of entry, and neglected to avail themselves of it. The language of our statute is, “ that no person shall, .at any time hereafter, make entry into any lands or tenements, but within fifteen years next after his right or title shall first descend or. accrue to the same,” &c.' It transfers no title, and confers none on the person by whom the owner has been ousted. A naked possession is a perfect title, if a superior one cannot be shewn in another; and such is that of the person who happens to be in possession at the end of the fifteen years. This was decided, by this court, in Fanning v. Palmer, June, 1808. “ Actual ouster and adverse possession,” say the court, “of any lands, tenements or hereditaments, for fifteen, years after, the title or cause of action accrued, and before suit brought, bars the plaintiff of his right of entry thereafter, whether the ouster and adverse possession be by the same person or persons, for the whole term of fiftetn years, or by different persons, for different periods, making fifteen years in the whole ; provided, the disseisin and adverse possession have been continued and uninterrupted.” 3 Day, 258. In that case, the fifteen years disseisin was made up, partly by the possession of Joseph Noyes, who gained no title, and partly, by that of Nathaniel Palmer, who succeeded him without title, and between whom and Noyes there was no connexion or privity. But Palmer, being in at the close of the fifteen years, was held to have a good title. Upon this principle, so clearly deducible from the statute, and sustained by the highest authority, the titles of Joel Jennings and Mrs. Heron, who was then a widow, were extinguished by disseisin. The title of Lyon, was not acquired from them by possession, but rests simply upon his actual sei-sin at the expiration of the limited period. He was in of a — 292 — new title, not held under the vote of 1761 ; and it was therefore immaterial whether he was a member of the society or not. We are of opinion that a new trial ought not to be granted. In this opinion the other Judges concurred. New trial not to be granted.