Hale v. Inhabitants of Portland

Mellen C. J.

We are all satisfied that the instructions given to the jury were correct. As to that proportion of the estate which was legally conveyed by the deed of Hooper and wife to Lucy Stickney, she claimed to hold it and did hold it as tenant in fee simple ; so says the deed, and that is not to be contradicted by her. Not only so, but she afterwards conveyed legally this same proportion in fee with warranty. As to the proportion not rightfully conveyed to her by the deed of Hooper and wife, she claimed and possessed it, under the mistaken idea that she had derived a title to it by that deed. She never pretended to cdaira or hold it adversely to the rights of Hooper and wife. But as it has recently been discovered that the whole of the estate, described in the deed of Hooper and wife, did not pass, though Lucy ■Stickney and all concerned supposed it did, this explains the reasons and the nature of her possession of the whole ; and at once shews her motives ; and the deed in connection with these circumstances, excludes all presumption that she entered into and claimed the estate as, and in lieu of her dower. Whether there was a conveyance of her dower to Hooper, does not appear, though it is mentioned as part of the .consideration of the deed from Hooper and wife; but this single circumstance goes far to shew that the deed itself could not have been intended as an assignment to her, of the lands therein described, as and in lieu of her dower, even if no other explanatory facts appeared in the case. We perceive no defence to the action and accordingly there must be Judgment on the verdict.