Benjamin Melvin versus The Proprietors of Locks and Canals on Merrimack River, 16 Pick. 137

Per Curiam. The possession of Chambers, his heirs and assigns, for fifty years, is a bar to this action, unless it be explained. In order to show that it was not adverse to the demandant and his ancestor, evidence is introduced of a deed executed and acknowledged by Melvin senior and his wife, but containing no words of grant or warranty on the part of the wife. The question then is, what passed by this deed. And it is clear that all the estate of Melvin senior was conveyed by it, but that it did not operate as the deed of the wife to convey her estate.

Melvin senior having issue by the marriage, he was seised of a freehold for his own life, which he had a lawful right to convey, and this passed by his deed to Chambers, notwithstanding the terms of the deed were broad enough to convey a greater estate. Chambers therefore had a rightful possession during the life of Melvin senior, which neither Melvin’s wife, nor her heirs, could disturb ; and it was not adverse, for the law presumes that he was in possession under his right.

It was contended that the jury would be authorized to presume a grant from the husband and wife at some time subsequent to the abovementioned deed of the husband. But it may be remarked, that there was no acquiescence on the part of the wife or of the children, in the possession by Chambers, for they had no right to interfere. They could not object to his erecting buildings ; he was authorized to occupy the land according to his pleasure. We think there was but slight ground to presume a subsequent grant from Melvin and his wife, and that the instruction to the jury was correct.

But there is another view of the case which appears to us to be of importance, namely, that here are facts having a tendency to show a grant from Joanna to Melvin senior, prior to the deed to Chambers. It is manifest that Melvin undertook to convey the fee to Chambers ; and his wife having signed the deed, it is to be presumed she had knowledge of the contents. Although the parties interested were living in the neighbourhood, no objection was made to the possession of Chambers.

The mode in which Joanna joined in the deed to Chambers, is stated to have been practised in the vicinity, for the purpose of releasing dower. Chambers occupied in ihe same manner as if he had been the owner of the fee. All these facts have a bearing upon this point; and another circumstance of greater weight is, that Melvin senior undertook to convey the whole of the land, though his wife’s sister was the owner of one moiety, and yet no objection to the conveyance has been made by her or her heirs.

This subject does not appear to have been fully investigated, and we think there ought to be another trial; and if these facts shall be substantiated, it will be competent for the jury to find a grant to Melvin senior, prior to his deed to Chambers. New trial granted.