Smithwick v. Jordan

Where a conveyance of land was obtained by fraud and imposition, and the same was acknowledged and recorded, it did not operate such a disseisin as disabled the grantor afterwards to devise the estate so conveyed.

This was a writ of entry, wherein the demandants claim possession -of certain real estate in Boston, of which their grandmother, Mary Lobb, died seised. It was admitted, upon the trial of the general issue, which was had before the chief justice at the last November term in this county, that the demandants were sole heirs at law of the said Mary, and that she died seised of the premises •demanded; unless she had, before her death, alienated the same to the tenant. To show this, the tenant produced in evidence three several .deeds, signed, sealed, delivered, and acknowledged, by the said Mary, and duly recorded, conveying the land demanded in this ■action to the tenant; all made after the will hereinafter mentioned. There being evidence of extreme old age, and habits of intoxication, in the supposed grantor, and of great inadequacy of consideration, the jury were instructed that, if they believed those deeds to have been obtained by imposition, misrepresentation, or by taking advantage of the imbecility of mind of the said Mary Lobb, they must return a verdict for demandants, notwithstanding her supposed conveyances, (a) A verdict was returned for the demandants. There was offered in evidence, by the tenant, an instrument pur porting to be the last will and testament of the said Mary Lobb, and approved and allowed as such, wherein she devises the demanded premises to one Francis Can pbdl Smithwick in fee, then a minor of the age of seven years; provided that the said Francis was not to come into possession, * occupy, or have any advantage of said estates, during his minority, except through his guardian, afterwards appointed. She then appoints the tenant to be guardian of the said Francis, until he shall attain the age of twenty-one years, if he shall so long live; directs the guardian to lease, occupy, and improve, the estates, and, from the rents and profits, to maintain and educate the said Francis; appoints the tenant executor, and provides, in case her personal estate shall be insufficient for the payment of her debts, that the executor shall be repaid all such sums as he may advance for that object, out of the first rents and profits which he may receive as guardian. The said instrument was rejected by the judge, in order that the jury might distinctly settle the question of fact, relative to the above-mentioned conveyances; it being contended, for the demandants, that the will was legally revoked by the said conveyances. If the Court should be of opinion that the tenant had lawful right to defend his possession, under the said will, in this action, the verdict was to be set aside, and the demandants to become nonsuit; otherwise, judgment was to be rendered for them upon the verdict.