Ablard v. Fitzgerald

Newman, J. The plaintiff in ejectment recovers, if at all, on the strength of his own title. The plaintiff in this action failed utterly to show that he had title to the strip of land in dispute. The defendant’s motion for a nonsuit should have been granted. The plaintiff produced no chain of paper title from Welton, the common grantor, nor either title or possession in Norton, his immediate grantor; so his claim is entirely unsupported by evidence of paper title or the presumptions which possession in his grantor might give. Besides, it appears'that the disputed strip is almost, if not quite, wholly outside of the description in the deed from Norton. The more specific and controlling description contained in that deed is by courses and distances. It fixes the north line of the plaintiff’s land at eighty rods north of the south line of the forty-acre tract. A line which shall be eighty rods north of the south line of the forty is still south of the fence on its east end, and but little, if any, north of it at its west end; so that there is south of the fence a few square rods more of land than the [519] plaintiff’s deed calls for. So tbe testimony of tbe surveyor shows it. Eut it seems that tbe evidence fails to support tbe defense of adverse possession. The defendant, too, is without a chain of paper title. It does not appear that be has a deed conveying tbe disputed strip to him. The disputed strip is outside his forty acres. Without such a conveyance, it is difficult to see how he can connect his own possession to the possession of his predecessor, so as to make the adverse possession continuous; for any interval, however short, between the termination of the possession of his predecessor and the beginning of his own, would be ■sufficient for the seisin of the true owner to attach, and so the continuity of the adverse possession would be broken. The entry afterwards by the defendant would be a new dis-seisin. So, without a deed of the strip, it seems that the defendant can claim no right to the land founded upon the adverse possession of his grantor. This seems to be the effect of Graeven v. Dieves, 68 Wis. 317. But, however this may be, there should have been judgment for the defendant. By the Court.— The judgment of the circuit court is affirmed.