Doolittle v. Linsley

2?tc£<z. — An entry upon land without colour of title, and occasional acts of cutting Umber continued for fifteen years, but without any permanent improvements or enclosures, will not enable the claimant to defend in ejectment at the suit of the owner. A trespasser upon land is not accountable to a prior trespasser upon the same land — the latter having manifested no claim or pretended to no right, has, in contemplation of law, no possession which can be disturbed. But, Held, that a prior occupancy, accompanied by such acts as evince a claim of title, (that is,) such acts as would preclude the claimant from the benefits of a disclaimei in an action of ejectment by the owner, and such as would, if continued fifteen years, have baned the owner, is sufficient to entitle the person so seized to maintain trespass or ejectment against a stranger.

MOTION by the defendant for a new trial, founded on exceptions taken at the trial below, and certified to this court as follows: — The cause was trespass, quare clausum fregit. On the trial, it appeared in evidence, that the lot in question was a wood or timber lot, and that no enclosure was made thereon. The plaintiff gave in evidence,- a survey of the lot (by metes and bounds) dated the 5th of April, 1798, to E. Andrus ; also a deed from E. Andrus to C. Humphrey, dated the 28th of January, 1805; also the record of a judgment, execution, and levy ■of L. & R. Clark against C. Humphrey ; also the record of a judgment, execution, and levy, J. Doolittle against L. & R. Clark. Testimony was also given on the part of the plaintiff tending to show, that in 1813 and 1814,(he had got wood and timber from the lot, claiming title thereto, and that no timber or wood had been cut thereon before that time. That Joel Linsley, the intestate, under whom the defendant claims, went on to the lot in February or Biarch, 1814, and cut timber ; and that no cutting of timber, &c. had been done on the lot before that time, excepting by the plaintiff. That the said Joel Linsley, the defendant’s intestate, then declared, that the previous chopping, &c. had been done by the plaintiff, and that the plaintiff claimed title to the lot, but that his, the said Husky's title was the best. Evidence was also given on both sides tending to show, that the said Linsley and the plaintiff had subsequently and repeatedly got timber and wood from the lot, each claiming title thereto. The defendant claimed title under a vendue deed from James O. Walker, collector of a land tax, to his intestate, and offered said Walker as a witness to show he attended to receive the tax on the land agreeable to the law and his advertisement; (having first executed and delivered to him a discharge, which was executed by the defendant, in his capacity of administrator of the said Joel Linsley, deceased, he being such administrator.) The witness was objected to by the plaintiff, and rejected by the court.' The defendant further offered in evidence, a deed from said Walker to the intestate, dated 30th March, 1803, which was objected to by the plaintiff, on the ground that it did not appear the same was recorded; and the same was rejected by the court. The court decided, and so instructed the jury, that if the plaintiff had commenced the first possession upon the lot, by cutting timber and wood thereon, (the same having been previously surveyed, and the lines marked) claiming title thereto, and had continued that possession by repeatedly getting timber and wood from the lot, that he could maintain this action against a stranger. And although it should appear the defendant’s intestate, claiming title, had cut timber and wood upon the premises repeatedly, from the time stated, to wit, February or March, 1814, to the time of bringing the suit, yet,.if when he went on to cut timber, &c. he knew the plaintiff had previously taken timber and wood from the lot, claiming title thereto, the defendant was a stranger to the title; and that the prior possession of the plaintiff would entitle him. to recover.; such possession having been continued down to the time of the acts complained of in the declaration. A verdict having been returned for the plaintiff, the defendant excepted, &c. Phelps, in support of the motion. The decision of the court was erroneous in deciding that, upon the proof stated in the case, the plaintiff was entitled to recover. The plaintiff relied upon possession merely. — By the English law, the plaintiff must recover upon the strength of his title: mere possession is not sufficient. — See Adams on Ejectment, 28. The rule, that a party may recover upon the ground of prior possession, is of recent origin, and when he relies upon prior possession, it must be clearly and unequivocally shown. It must be an actual possession. An occasional cutting of timber is not sufficient. — Jackson vs. Harder, 4 Johns. 202. — same vs. Hazen, 2 do. 24. — same vs. same, 3 do. 509. — same vs. Myers, 3 do. 388. —same vs. Schoonmaker, 2 do. 230. — Smith vs: Isaacs, 1 Root’s Rep. 151. — Miller vs. Dow, do. 413. The possession should be such as would make a good title under the statute of limitations. As to the requisities of such a possession, see Proprietors of Kenebec vs. Colls, 1 Mass. 483. Doolittle, contra. Three exceptions are taken to the decision of the court at the jury trial: 1. To the charge to the jury. 2. To the rejection of J. O. Walker, as a wintess. 3. To the rejection of the deed from J. O. Walker, collector, o J. Linsley. First. The charge was correct. It was substantially instructing the jury, that if they found the plaintiff had priority of possession, claiming title, and no title for the defendant, the latter was a stranger, and the former entitled to recover. This charge is supported by the whole current of authorities, English and American. It’is a general rule of law, that possession is presumptive evidence of title, and from this rule results another general rule, that one in possession may maintain trespass against any one who enters upon that possession without title. There is nothing perceived in this case, to destinguish it from other cases of this sort. The jury find the plaintiff had prior possession, claiming title, and an entry upon that possession by the defendant, without title. The plaintiff is therefore entitled to judgment. — Cro. Eliz. 438, Bateman vs. Allen. — 2 Sawn. 112, Allen vs. Rivinglon. — 1 Burr. 440, Waring vs. Griffiths. — Cro. Jac. 123. — 1 East, 244, Graham vs. Beat. — 1 Wils. 326, Kenrick vs. Taylor. — 4 Taun. 547, Catteris vs. Confer. — New-Bamp. Rep. 456, Wendall vs. Blanchard. — D. Chip. Rep. 141, Ellithorp vs. Dewing. — D. Chip. Rep. 92-3, Doe ex. d. Pear sal vs. Thorp.— 3 Johns. Rep. 1-8. These authorities, (and I find none to the contrary,) well support the opinion of the court in their charge and direction to the jury. But there is another point in the case which is very decisive as to the actual and legal possession of the plaintiff. The case finds, that on the 3d of August, 1812, the plaintiff extended an execution on the land, and had the same appraised and set off as the law directs, in part satisfaction of a judgment debt. — 3 Mass. Rep. 523, Gore vs. Brazier. — 7 Mass. Rep. 138-9, Wellington, vs. Gale. — Brayt. Rep. 230, Brown vs. Bates. — 5 Bac. Abr. 160. — 8 Mass. R. 411. — Swift's Dig. 162, 512. — 1 Sid. 203. — 4 Dane's Abr. 19. — 3 Johns. Cas. 128. Second. The defendant offered in evidence a deed from J. 0. Walker, collector of a land tax to his, the defendant’s intestate, and offered said Walker as a witness to prove an act done by him, as collector, necessary to the validity of the deed : which deed contained a covenant of warranty running with the land, and it was admitted the covenant had never been broken. The defendant, as administrator of Joel Linsley, wrote and delivered to said Walker a discharge, after he was called upon the stand, and objected to. Were this a case between the covenantor and covenantee, it could easily be shown that this discharge did not restore the competency of the witness. The rule “that the thing which unbinds must be as strong as that which binds,” forcibly applies. This covenant could not be discharged except by deed, even by the covenantee. — 4 Bac. Abr. 265. — 5 Bac. Abr. 682.— Shep. Touch. 323. — 2 Wils. 373.----Yelv. 192. — Cro'. Jac. 254. — - 2 Wils. 82. — 6 Coke's Rep. 44, et passim.- — 3 Day's Cas. 433, Abbey vs. Goodrich. Third. The next exception is to the rejection of the deed offered by the defendant as evidence of title, because it did not appear the same was recorded. rj^ ¿66(^ couj¿ not be admitted as evidence of title, till recorded. The only evidence of its being recorded was the following certificate, viz: “Cornwall, March 1st, 1809, received for record. Attest, Joel Linsley, Town Clerk.” This certificate furnishes no evidence that the deed is recorded. It does, indeed, furnish evidence that it was received for record; and here it stops; and the natural inference is, that if was immediately taken off the file, and became alienated from the office. It is a first rule of evidence, that in cVéry issue, the affirmative must be proved.- — Bull. N. P. 298. It was incumbent on the defendant to prove, that the deed was recorded, and the defect cannot be supplied by intendment, It is very decisive, that the truth, of the certificate is perfectly consistent with the fact, that the deed is still unrecorded. “Wberé a writing is required, by law, to be recorded in some publick office, to make it evidence, as a deed óf land, then it must appear to have been recorded to make it admissible evidence.” — Swift's JEv. p. 5. And in such case, the certificate signed by the recording and certifying officer must state the fact affirmatively. — 3 Dane’s Abr. 356. — Stanton vs. Button, 2 Conn. R. 527. — Pendleton vs. Button, 3 Con. Rep. 406. — Ray vs. Bush, 1 Root’s Rep. 81.— Franklin vs. Cannon, 1 Root’s Rep. 500. — Tucker, Exr. vs. Stark & Bell, Brayi. Rep. 99.