Ebenezer Alden & ux. vs. Rufus Gilmore, 13 Me. 178

The opinion of the Court, after a continuance was drawn up by Weston C. J. The case finds, that in 1792, when David Gilmore, the elder, took his deed of Jonathan Amory, of a tract of land, embracing the demanded premises. David, the younger, was in the possession and occupancy of them. But his possession does not appear to have been adverse to the title of his father. He continued his occupation, until in 1803, he was succeeded by his brother Bufus, who held under his father, in the expectation that he should become the owner, by a conveyance from him in his lifetime, or by will, upon his decease.

It is very apparent, that in consequence of the relation subsisting between them, both the sons were permitted to enjoy the land, by the indulgence of their father, without payment of rent, subject to such final disposition of it, as he might appoint. The title of Amory then passed by his deed to the elder Gilmore. There was no adverse seisin or impediment to the transmission of the fee to him, with whom it remained by law, until divested by dissei-sin, or lawfully conveyed.

On the thirteenth day of October, 1826, lie conveyed the land, now in controversy, by deed of warranty to Patience Alien, one of the demandants, and the wife of the other. It was duly delivered and acknowledged, and on the twenty-sixth of the same October, was recorded. The husband has assented to the conveyance, if his assent was necessary, by bringing this action, and producing the deed at the trial. The operation of this deed, could not be countervailed by the impression of Walter Plaice, the witness, that Mrs. Alien had had two deeds, and that they had both been returned to the westward.

By whom returned, to whom, for what purpose, or whether done by the knowledge or assent of the husband, does not appear. One of the deeds could not have been that, upon which the demandants rely, and whether the other was is not stated or proved. Without determining the correctness of the instruction to the jury, as to the effect of an express dissent by the husband to the conveyance, we are of opinion that this objection cannot prevail, as no such dissent appears.

The proof very clearly is, from the repeated and uniform declarations of the tenant, except in some of his conversations with Walter Blake, that he occupied the land under his father, and with his permission. He was then bis tenant at will, at least up to the period when he began to meditate setting up a possessory title. The first intimation he made to Blake of such an intention, be testified was in 1824, when Elliot was tried for murder, at Castine.

This, however, is not consistent with another part of his testimony, in which he says that the tenant never intimated that he had any claim, until after the deed was giveu to Mrs. Alien.

In the conversation, which he testified took place in 1824, if he was under no mistake as to the dale, the tenant said his father had promised the land to him, that he expected it by deed or will, but had been in possession of it long enough to hold, although Blake reminded him of what he had formerly told him, that the land belonged to his father, and he occupied it under him, which the tenant did not deny, but said it made no odds.

This seems to have been an intimation of what the tenant had in contemplation, but of which he thought bettor upon reflection, for the same witness testified, that in 1827 or in 1828, he told one Vaughan and Mown/, he had no title to the land, but that it belonged to his father. Upon the whole, the testimony taken together, negatives any pretence of an adverse seisin in the tenant, until after the deed to Mrs. Alien. The seisin being in her grantor, he had a right to convey, and his title passed by his deed to her, and to her husband in her right.

There being at that time no adverse seisin, no legal question as to the necessity of notice of such a fact to the true owner of the land can arise. Building upon or enclosing the land of another without right is constructive notice to the owner of the adverse claim. Poignard v. Smith, 6 Pick. 172. Of a very different character is the case of one, who enters upon land by the consent, and as the tenant of another.

If he could dis-seise his lessor, except at his election, which is not admitted, it certainly could not be done by a mere declaration to a stranger, of which the lessor has no notice, without any change in the nature of the occupancy, calculated to put him upon his guard. Judgment on the verdict