Little v. Downing

Trespass by husband and wife, for an injury to the land of the wife, is properly prosecuted in her name alone after her husband’s death. Ancient records, when accompanied by an admission that they come from the proper depository, are admissible in evidence without further proof of their authenticity. When a record has become illegible by lapse of time, the testimony of a witness, who had examined and copied it while legible, is properly received to supply the defect. Where books of record are evidence, their contents are evidence of those matters therein recited which were proper subjects of record. A copy of an ancient proprietary charter, duly recorded and certified in the book of records of the proprietary, is admissible in evidence. Taxation of land to an individual and his heirs for a long series of years, and the payment of those taxes by him and them, are competent evidence tending to show that individual’s assent and approval of the assignment of the land to him in severalty, and his claim to the ownership thereof. Entry upon a lot of land, claiming title, and a survey thereof made, for the purpose of ascertaining its location, quality and boundaries, are competent and sufficient evidence of possession. The selection for an individual of a lot of land, in an original proprietor’s right, made and recorded upon the records of a proprietary, in accordance with a vote of the proprietary, vests in such individual a title to the lot thus selected, as against the proprietary and all persons claiming under them. Mere entry and occupation by a stranger do not divest title, so as to oust the true owner of seizin. Possession taken under color of title is in law possession of all the land described in the deed conferring such color of title, lying in the same tract; but, in order to make such possession effectual to the party claiming title under it, it must be open, visible, exclusive and notorious — calculated to give notice to the owner of an adverse claim thereby to the land. The statute of limitations does not run against persons insane, or females under coverture. Where, in trespass quare clausum, with a continuando, the plaintiff failed to prove an entry within the period specified in the writ, he is at liberty to waive the time alleged in the declaration, and, having proved any single act of trespass at any time before action brought, may recover damages therefor.

Trespass, quare clausum fregit. John Little was alleged to be an insane person, and prosecuted the action by guardian. He had deceased pending the action, which was prosecuted since by the wife. The declaration alleged that the defendant, at Rumney, on November 1, 1851, and on divers, &c., broke and entered the close of Sarah Little, in Rumney, being lot No. 5, in the first range of .100 acre lots on Ellsworth line, lying east of lot No. 4, in said range, occupied by Gribson, and cut down and carried away timber, wood and bark, &c., particularly specified in the writ, which is dated January 29, 1855. The defendant pleaded the general issue, with a brief statement of soil and freehold. The defendant objected that John Little, being dead, the action could not proceed in the name of Sarah Little, but the court overruled the objection, subject to exception. To prove the plaintiff’s title, a deed of partition was proved, purporting to be made by and between the heirs of Josiah Little, deceased, in which there was assigned to Sarah Little, as one of the heirs, among other lands, “ all rights and interests in and to any lands lying in Kumney of which Josiah Little died seized and possessed.” It was proved by a witness that Sarah Little was a daughter of Josiah Little, and that the other parties to this deed were heirs, and, with her, the only heirs of Josiah Little. The deed was dated March 16, 1832, and it appeared that Josiah Little died in December, 1830. Said John Little was then and ever since insane, and Sarah was his wife. To prove the title of Josiah Little to the premises in controversy, lot No. 5, on Ellsworth line, an ancient book of records was produced, purporting to be the proprietary records of Kumney. It was admitted they came from the office of the town-clerk of Kumney, and were in his possession as a part of the public records of the town. It was objected that they were inadmissible without farther evidence that they were the records of the proprietors of that town, but the court overruled the objection, subject to exception. Upon the 15th page from one end of the book was the following entry: “May 25, 1782. Then laid out a 100 acre lot in the township of Rumney, on the north-easterly side of Baker’s river, and in the first tier. Said lot is numbered on each boundary, No. 5, beginning at the south-east corner of the 4th lot in said tier, at a beech tree; thence south, 59 east, 103 rods, to a beech tree; thence south, 30 west, 160 rods, to a beech tree; thence north, 30 east, 103 rods, to a beech tree; thence to the first bound laid out by us. Alexander Craig, Isaac Clifford, Jonas Blodgett, Proprietors' Committee. Surveyed by me, Hobart Spencer. A true copy from original survey, March 11, 1784. Josiah Little pitched the lot No. 5, in the first range, on the right of Samuel Emmons, and is numbered on each corner No. 5. Rumney, October 24, 1783. Received for the record. Edward Everett, In behalf of Josiah Little. A true copy from the original pitch, recorded March 11, 1784. Edward Everett, Proprietors’ Clerk. The writing of these entries was very obscure, the ink having much faded. "William A. Burns was offered as a witness, to show what the writing was, as he had formerly read it. Objection was made, but be was admitted, subject to exception. He testified that his attention was called to this record three years ago. The writing was much more distinct then than it now is. He has frequently examined it since, and he could read it plainly a year ago, when he made a copy of it, which he did immediately after the court last November. The date was March 11, 1784. At the 22d page, at the other end of the book, is recorded a warrant, dated May 29, 1782, for a proprietors’ meeting June 14, among other things — “ To see if the proprietors will accept of a survey made of a new division of 100 acre lots, according to the plan made and laid before them by Hobart Spencer, Surveyor. “ And to see what method the proprietors will take to establish each proprietor in the right of his share in the third division. “ To see if orders shall be given to the committee to complete the laying out of the remainder of the land included in the ranges of the aforesaid division, and not lotted on the west side of the town. (Signed) Edward Everett, Proprietors’ Cleric.” , This is followed by the record of a proprietors’ meeting, held June 14, 1782, &c., at which it was— l “ Voted, That the committee be enabled to complete the laying out of the third division on the north side of Baker’s river, by laying out as much of the land as they think best into 100 acre lots. “Adjourned to 8 next morning. “ Met 15 June, &c. “ Voted, That each proprietor shall have'liberty to make his pitch of a 100 acre lot, each lot to each right he is the owner of, under the following restrictions and limitations: “ 1. Each proprietor, in making his pitch, shall take his lot as laid out by the committee appointed for that purpose, according to the plan laid before us. “ 2. Each proprietor who does not make his pitch until the committee have completed the lotting of common land according to the proprietors’ book, shall have liberty to pitch in any of said lots that shall be laid out, provided he does not interfere with any vote respecting said division. “ 3. Each proprietor that inclines to pitch, shall enter the lot he pitches in writing, mentioning the number of the lot and the range it is in, and return it to the proprietors’ clerk, who shall enter said pitch on file, with the name of the original proprietor whose right said lot is pitched on, which shall be accounted a legal pitch. “ 4. That the survey be made in writing, and committed to the clerk, who shall enter each single survey on record, as soon as the lot mentioned in said survey is pitched and returned as above mentioned, and likewise the pitch, with the original proprietor’s name.” To this evidence the defendant excepted. The plaintiff then offered to prove that the lot in question was taxed to Josiah Little and to his heirs, and to the plaintiff, and that the taxes were paid by them, as evidence of assent by Little to the pitch made in his behalf, and of the claim to the land under it. The evidence was objected to, and admitted subject to exception. The record of taxes showed the land taxed to Josiah Little, with the exception of four years, in which it was taxed to James Little, from 1797 to his death, and after-wards to his heirs, or to the plaintiff, till 1854, and the witnesses proved the payment of taxes by or on account of Josiah Little, from 1822 to 1828, and in 1830, and by the heirs or the plaintiff in 1831 to 1836, and from 1845 to 1852. J. Atkinson testified that, as agent of the plaintiff' he went on the land in the fall of 1853, and passed across this lot. His object was to ascertain where the land was, and what it was. The witness, Burns, testified that in December, 1854, he made a survey of this lot No. 5, at the request of Mr. Atkinson, and found one of the original corners standing. Various witnesses testified as to seeing bark, wood and timber cut on the lot, and to admissions of the defendant that he cut it, but none of the evidence tended to show any trespass within the dates specified in the writ, and no objection was made to any of the evidence on this point. When the plaintiff had closed his case, the counsel for the defendant moved for a nonsuit, but the court declined to order it, and the counsel for the defendant excepted. The defendant then offered in evidence a deed from one Israel Willey to the defendant, dated and acknowledged May 27, 1828, and recorded October 14, 1889, tbe execution of which was admitted. Willey, in consideration of five dollars paid for one hundred acres of land, in Eumney, fifth lot and first division, and in the first range, remised, &c. The deed was very informal, but was deemed by the court sufficient to convey any right Willey had to the lot. Witnesses were then introduced, whose testimony tended to prove that Willey was in Eumney in 1828, but has long since removed; that in the spring of that year he sapped on this lot. There was no evidence of any other act of Willey indicating any possession or claim to this lot. After his purchase, the defendant first sapped on this lot the year after his deed. In two or three years after the malting of this deed, the defendant began to make a clearing on this lot. He felled the wood on two or three acres, planted corn upon the burn, and the next year sowed wheat; on the third season he mowed it, and has used it as pasture after he ceased to mow it. In one or two years after the first clearing, the defendant cleared another piece of similar extent, and adjoining the other, on which he raised, first, corn, after that wheat and rye, then hay, and it was afterwards pastured. About seven years after the first clearing, he cleared a third piece, adjoining the second, the whole cleared being estimated by the witnesses to amount to ten acres. A few years since the defendant cleared another piece of similar size, at another part of the lot. It appeared that the pieces cleared were fenced, but it did not appear that the fences extended on all sides of those pieces. Nor sixteen or eighteen years past the defendant has cut his fire-wood there and timber. , It appeared that the three first clearings made by Downing were made on the side line of the lot, where it joins the town line and the cleared land of Downing, in the town of Ellsworth; that some wood was left between Downing’s clearing, beyond the line and his clearing on this lot; that the clearing was about the length of the lot, and estimated by some of the witnesses at eight or ten rods, and by others at twenty or thirty wide. It being objected that the plaintiff had shown no charter or grant constituting a proprietary, the copy of the charter recorded in the proprietors’ book was admitted in evidence, subject to exception. Various entries on the proprietors’ book were exhibited, showing that they were substantially in the form of the record and pitch of this lot. The defendant’s counsel contended that, to show title in Josiah Little, a deed from Emmons to him must be shown, and that without it a pitch by Little on his right would vest no title in Little; and that to give Sarah Little any title it must be shown that Josiah Little was seized of this lot at his decease; and that an entry on land, claiming under a deed, whether valid or not, gives possession of all the land described in the deed, and that twenty years uninterrupted possession under such deed gives a valid title to the land, even against the owner, and he requested the court to charge the jury accordingly. He also contended that the meeting of the proprietors, June 14, 1782, was after the pitch of lot No. 5 ; and also that there was no evidence that Samuel Emmons was an original proprietor. These questions as matters of fact were submitted to the jury. The court instructed the jury that, as matter of law, a pitch made in conformity to the vote of the proprietors, by a grantee of any original proprietor, on his right, would vest the title in such grantee; that a deed from such original proprietor was not indispensable; that the entry on the books of the proprietary of the pitch by Little on the ¡right of Emmons, would be evidence, as against the proprietary, of such a conveyance, and if good against them it would be good against any one claiming after them; that'the entry on their books of a pitch by one person as agent of another, would be evidence of such agency as against them, and consequently as against others; and that the payment of taxes, assessed against Little on this lot, was evidence of his assent to the act of the agent in making the pitch, and of his claim under it; that they might, therefore, take it as a matter of law that this pitch vested the title of lot No. 5 in Josiah Little, and that the title vested in Josiah Little would not be divested by the mere entry and occupation of Downing, so as to prevent his being seized at his death. The court farther instructed the jury, that possession of land taken under color of title, that is, under a deed purporting to convey it, would in law be a possession of all the land described in it, lying in one tract; but that in order to make such possession effectual to make a title to the party entering under such deed, after twenty years, it must be open, visible and notorious ; such a possession as would be calculated to give notice to the owner of a claim to the land. If, then, the cutting at the beginning was slight, and along one of the lines, such as might be accounted for as a mere mistake of a line not well known, such possession should not be accounted as part of the twenty years, until it assumed such a visible and notorious character as might be fairly regarded as notice to the owner of an adverse claim. The court farther instructed the jury, that as it appeared that at the time of the death of Josiah Little, John Little was insane, and so continued till his death, pending this suit, and Sarah Little was, during the same time, a married woman, no title would be gained by possession, as against them, by the lapse of twenty years, since the law gave them a right of action for five years after such disability was removed. If, therefore, the jury should be of opinion that the first clearing made by Downing did not occur until after the death of Josiah Little, Downing would have acquired no title by possession, as against this plaintiff. To these instructions the defendant excepted. The court farther instructed the jury, that as the plaintiff had not proved any trespass within the dates mentioned in his writ, they might find in his favor such damages as they should find to have been occasioned by any one act of trespass, proved to have been committed at another time. The jury having found a verdict for the plaintiff, the defendant moves that the same may be set aside and a new trial granted, by reason of said exceptions.