James Thomas & al. vs. George W. Pickering & als., 13 Me. 337

The action was continued for advisement, and the opinion of the Court was prepared and delivered at a subsequent term in Cumberland by Weston C. J. James Dunning, the younger, being the owner of five-eighths of a tract of land, containing two hundred and twenty-five acres, sold to different persons ten acres, one acre and an eighth of an acre, part of the same tract, by metes and bounds. These sales did not conclude his co-tenants ; and were liable to be defeated by them.

But as the quantity sold was far short of the proportion to which he was entitled, he might well entertain a just expectation, that these parcels would be assigned to bis right, when partition was made, and thus his sales become confirmed. He ventured to rely upon a spirit of accommodation, on the part of his co-tenants. He subsequently sold his five-eighths in the whole tract, describing it, to the petitioners, excepting therefrom the parcels before sold. Had the terms of the exception stopped there, there might have been some color for the position, that the exception was only of five-eighths of those parcels.

But that his meaning, in his deed to the petitioners, might not be misunderstood, he adds, “ which exceptions are reserved out of the five-eighths, conveyed as aforesaid.” This language is plain and intelligible. It cannot easily be misunderstood. The parcels sold being reserved out of the five-eighths, the residue was conveyed to the petitioners. He had given deeds of warranty to his prior grantees ; and in selling the residue, he meant to make provision, that they should not be disturbed.

In order to carry into effect the plain intent of the parties, it must have been contemplated, that in any partition which might be made, the parcels excepted would be assigned as part of the five-eighths; and that the petitioners, or whoever might claim under them, would be entitled to the residue of that proportion of interest, to be set off to them in severalty. The petitioners did not purchase five-eighths, but they purchased such fractional part of the whole, as would remain, after deducting from five-eighths the parcels before sold.

The previous grantees and the petitioners together were the assignees of the exact and entire interest of Dunning, the younger. After the first grants were satisfied, the petitioners came in for the residue. They claiming to represent five-eighths, and the proprietors of the other three-eighths, made partition among themselves. After determining what should be assigned to each, mutual releases were passed, to enable the petitioners and the other co-tenants to enjoy their respective shares in severalty.

In the arrangement, certain of the small lots, into which the whole tract was divided, were assigned to the other co-tenants, as an equivalent for their releasing to the petitioners their interest in the excepted pieces. The effect of this was, that these pieces were assigned as part of the five-eighths; the owners of the three-eighths taking their share elsewhere. Thus the five-eighths became detached and severed from the three-eighths; but it was the same interest in another form.

The right to make partition was incident to the estate, of which the co-tenants availed themselves in a mode, with which they were satisfied. The proportion of the petitioners was not increased, or intended to be, by the partition. The five eighths had succeeded to the whole of the excepted parcels; but it was in consideration of a release and relinquishment of that interest in other parts of the tract.

If the petitioners, having paid no new consideration, their right being derived altogether from the conveyance from Dunning, hold three-eighths of the excepted parcels, they would have more by so much than they purchased; and that at the expense of the prior grantees, or of Dunning their warrantor. If that is to be the result, at variance as it manifestly is with the source and origin of their title, the interests of some of the parties will be sacrificed, in consequence of the course pursued by the petitioners.

And if in this, they are to be aided by the technical principles of law, those principles will be perverted to a purpose, which is neither consistent with justice, nor with the fair construction of the deed, under which they claim. Technically an exception must be of part of what was previously granted, or would have been granted, but for the exception; and it is insisted, that as the three-eighths, claimed by the petitioners, never belonged to Dunning, the younger, they could not have been granted by him, and therefore could have formed no part of the exception.

If a moiety of a tract of land in common and undivided, is granted by the owner of that proportion, which upon partition is afterwards set off in severalty, is it not the same interest? And if the grantor had taken a mortgage to secure the purchase money, would it not attach to that interest, when severed ? So if the grantor had excepted from the same moiety an acre by metes and bounds, which upon partition is assigned to that interest, shall the exception be defeated ? We perceive no sufficient reason why it should be.

It is a distinct and determinate part of what would have been granted, but for the exception, in its new and derivative form, flowing from the right of partition, which is one of the legal incidents of the estate granted. A conveyance of land not located, but which points out the manner in which it is to be located, is operative, and passes the land when located. Fairbanks v. Williamson, 7 Greenl. 96. There must be reasonable certainty as to the subject matter of a conveyance ; and no more can be required as to the subject matter of an exception.

We think the exception in the deed under consideration, should be understood to mean, that out of the five-eighths were reserved the excepted parcels, they being first assigned as a part of that interest. It would hence result, that the petitioners could not claim any part of the acre against the exception. Had the partition between the parties been made by process and judgment of law, the consequences which we have deduced, we doubt not would have been justified and required. The same result ought to flow from the mode of partition adopted.

That Thomas and Dudley so understood it, may well be presumed from their long acquiescence in the claim and enjoyment in severalty of the excepted pieces by the grantees of the younger Dunning and their assigns. But if the mutual releases executed by the parties, may have left the legal title of the proportion, claimed by the petitioners in them, it may be important to view the cause in other aspects, in which it may be presented.

If the meaning of the exception cannot be directly carried into effect, that its plain purport might not be defeated, the five-eighths may be understood tobe conveyed to the petitioners, charged with the trust, in favor of. the grantees of the excepted parcels, their heirs and assigns, that so much of the land, as might be necessary to effect the object, should be appropriated to procure the extinguishment of the interest of the other co-tenants in these parcels ; and that would still leave to the petitioners all they purchased. It is not necessary, that such a trust should be declared by them.

It is sufficient, if it is declared by their grantor in his deed of conveyance, in which case, they would take the land charged with the trust. No particular form of words is necessary for the creation of a trust. It is sufficient, if the intention is clear. 4 Kent, 304. The excepted pieces were to be taken from the five-eighths : and if this could not be done, but by the procurement and agency of the petitioners, it does not appear to be too much to say, that when they accepted their deed, they took the land charged with that trust.

Their title to so much as five-eighths cannot otherwise be sustained ; for they purchased that proportion, reserving therefrom the excepted pieces. Upon this construction, the petitioners are the trustees; and the grantees of those pieces, their heirs or assigns, the ccstuis que trust. In Armstrong v. Pierce, 3 Burrow, 1898, the court held it as a settled point, that the formal title of a trustee shall not, in an ejectment, be set up against the cestui que trust; because from the nature of the two rights he is to have the possession. Lord Ellenborough, however, in Shewen v.

Wroot, 5 East, 138, thought otherwise ; and in a note to that case it appears, that the Judges were divided in opinion upon the same question, in the exchequer chamber. But if the trustee would at law' be entitled to judgment, this court, sitting as a court of chancery, would upon a proper process enjoin the execution of it against the cestui que trust. Dunlap et al. v. Stetson, 4 Mason, 349.

If the case required it, it might deserve great consideration, whether the claim of the petitioners could be enforced, without giving effect to the consummation of a legal fraud against Dun-iting and his heirs, who are bound by his covenant of warranty, and against those claiming the excepted pieces under him. It is very manifest that the petitioners well understood, that they had no interest in those pieces.

They took no measures to assert any claim thereto until 1834, more than thirty years after the execution of the release, upon which it is now founded ; notwithstanding, during all that time, they knew that sole seisin in the acre in question, was claimed and asserted by the grantee of Dunning or his assigns. We proceed to the consideration of other points raised at the trial. In 1798, Thomas Rice took a deed of warranty of Dunning, the son, of the disputed acre, who was then in the actual possession.

On the part of Dunning, this conveyance was an unequivocal ouster of his co-tenants, front that part of the land, and a claim of sole seisin in himself. For notwithstanding the case of Porter v. Hill, 9 Mass. R. 34, which has reference to a case of jointenaney, it has been well settled that one tenant in common may oust his co-tenant, by resisting or denying his right, or excluding him from the enjoyment of it. Doe v. Prosser, Cowper 217; Coke Lit. 199 b. Bracket v. Norcross, 1 Greenl. 89; Rickard v. Rickard, 13 Pick. 251.

And an interest thus acquired may become indefeasible, under the operation of the statute of limitations. And if the party doing the wrong may avail himself of the protection of that statute, there is much greater reason for extending it ‘to his grantee, to whom no wrong can be imputed. A sale by metes and bounds to a stranger is an ouster of the other co-tenants, within the principle of the authorities before cited. But Rice having bought of the apparent owner in possession, was no disseisor. His estate might be defeasible; but he was not a wrongdoer in making his purchase.

Nor is the title he acquired subject to the strict construction, which obtains against a disseisor. Pro. Ken. Pur. v. Springer, 4 Mass. R. 416; same v. Laboree et al. 2 Greenl. 275. Rice having taken a deed of warranty, and caused it to be recorded, his grantor being in possession, acquired a seisin, which he had a lawful right to transfer, in 1801, to Hyde, no adverse right or claim having in the mean time been interposed.

If Chicle, the witness, then entered and occupied part under Hyde, the latter was thereby seised of the whole land covered by his deed, which he had lawfully purchased, if indeed such an occupancy were at all necessary for this purpose, under the circumstances, there being no adverse possession. The jury have found that Chick did enter under Hyde, through the agency of Thomas. It is however insisted, that there was no evidence to be left to the jury of the agency of Thomas at the time. We think otherwise.

He acknowledged himself to have been the agent of Hyde in making the purchase of Rice, to Taylor in 1802 or 1803, while Chick was in possession. In 1807, he put on Harriman, as the jury have found, in behalf of Hyde, and in 1810, he made a lease in writing, as his agent and attorney, of part of the land to Reynolds. And although Hyde did not recollect, that he employed Thomas as his agent at so early a period, there was evidence to prove that fact properly left to the jury. If the seisin was in Hyde, it could not be in the petitioners’ releasors ; and could not therefore be acquired by their release.

Whatever right, if any, that release gave them, commenced at its date ; and cannot be referred to the previous steps taken, preliminary to a partition among the co-tenants. And we are of opinion that Thomas, being the agent of Hyde, had no more right to take from a third person, a deed of land of which Hyde was seised, than a stranger. He only can lawfully convey, who is seised. Upon the facts therefore as found by the jury, the evidence of which was properly left to them, they were rightfully instructed, that the petitioners acquired no seisin by the release, under which they claim.

The point last under consideration, arises from a technical objection, ' which although available by our law, is aside from the merits of the case. There is however in the report, coupled with the finding of the jury, plenary evidence of a continued and uninterrupted seisin in Hyde and his assigns, for more than twenty years before the entry of the petitioners, and by w’hich their right of entry was taken away.

Reynolds became the tenant of Hyde of part of the acre in 1810; and that tenancy continued in him and his assigns, until Sargeant and another purchased the same land of Hyde, and built a store upon it, which remained, until it was burnt in July, 1834, covering in the whole an uninterrupted period of nearly twenty-four years.

It has been already stated, that the deed of warranty given to Rice, from a grantor in possession, which was duly recorded, and which enured to the benefit of Hyde, by a deed to him which was also recorded, followed by an entry and continued occupancy of part, if that was necessary, put the grantee and his assigns in the seisin of the whole. And being so seised, they became entitled to the protection of the statute of limitations against all conflicting rights.

It does not appear to us, that it could be any objection to the seisin of Hyde, that the occupancy of Reynolds was through the agency or by the consent of Thomas, or that his claim is more favorably presented, in consequence of his forbearance to assert it. The seisin of Hyde was necessarily adverse to any claim of seisin in Thomas; and not the less so, because he recognized the title of Hyde, and acted as his agent. The title of Hyde was openly asserted; and continued and preserved by the possession and occupancy of his tenants, and others claiming under him.

That of Thomas, long abandoned, if it ever existed, has been set up, after a slumber of thirty years. Under these circumstances, and against a claim so long dormant, the respondents, in our judgment, are well entitled to the benefit of the statute of limitations. The co-tenancy of others in the Hyde acre has never been recognized since 1798. The conveyances, and all the facts since that period, are evidence of sole seisin in Rice and those claiming under him, and consequently of an ouster of the other co-tenants, up to the entry of the petitioners.

The continuity of seisin under the Rice deed would have been broken, if the jury had found that Thomas put on Harriman in his own right, but this they have negatived. In addition to the facts adverted to in relation to Chick, to show the agency of Thomas in behalf of Hyde, there is in this part of the case, the evidence, that the land was known to Harriman as the Hyde acre; and that while in possession he negotiated with Hyde for the purchase of the part he occupied. We think therefore it was properly left to the jury to determine, whether Thomas did not put on Harri-man, as the agent of Hyde.

It does not appear to us to make any difference, in the deduction of title on either side, that the deed from the Commonwealth of Massachusetts of the Dunning land, was not made until 1802. The effect of that deed was, to confirm the titles, emanating from Dunning’s heirs. . Upon the whole, we are of opinion that the petitioners have not sustained their title, in any point of view, in which their case may be legally presented. Judgment on the verdict. Mem. During the week allotted by law to this County, hut six cases, of nearly fifty standing for argument, were heard.

Two of the opinions in the six cases then argued have not yet been received by the Reporter. The Court adjourned to the second Tuesday of August following, and then heard every case prepared for argument; and the Reporter has received opinions in most of them. These oases will follow those argued before that time in other Counties.-