Varrell v. Holmes

Mellen C. J.

The facts in this case, appearing on the report, are very simple ; and the law is as plain as the facts. On the 29th of December 1823 the plaintiff purchased of Varrell, his father, and of others, a piece of land, and received a deed of it under which he claimed to hold it. Soon after, the defendant caused the plaintiff tobe indicted for purchasing a disputed title of the grantors, on the ground that at the time of the purchase they were disseised of the lands so purchased, and that the plaintiff knew they were so disseised. On the trial of the indictment the plaintiff was acquitted ; and this action is brought to recover damages for a malicious prosecution of the plaintiff in that case ; and the nonsuit was ordered by the Judge who tried the cause, because, in his opinion, the proof adduced by the plaintiff disclosed that there was probable cause for the prosecution. On the facts reported, we are now to decide whether such probable cause *171existed. It. appears that in the year 1801 the shaker society, by their proper officers, purchased a piece of land adjoining that which was purchased by the plaintiff of his father and others; but. it further appears that they, for twenty years or more before the plaintiff.'s purchase, had constantly held, in open, peaceable and exclusive possession, not only the land actually conveyed to them by the deed from Merrill, but also the adjoining piece described in the deed to the plaintiff; and during all the time, claimed it as their own, and adversely to all others, till after the plaintiff’s purchase according to the testimony of some of the plaintiff’s witnesses; though according to the testimony of others, the society did not assert a title to all the land described in the deed to the plaintiff; but were willing to give up a part. Now here is no difference in the testimony of the plaintiff’s witnesses, which can change the character of this cause, and of the defence growing out of this testimony. It amounts only to this, that to a part of the land conveyed to the plaintiff by his grantors, the shakers had never asserted any claim or had any adverse possession ; but that as to all the residue, they had possessed and claimed and held it, in such a manner as completely disseised the true owner; and to have continued such disseisin until after the plaintiff made his purchase and received his deed. It is very clear that if the grantors were disseised of any part of the tract they undertook to convey to the plaintiff, especially as that fact was known to him at the time, it was proof of probable cause for the prosecution though there was an acquittal. This view of the subject shews most plainly that there can be no legal ground for the objection which has been urged by the plaintiff’s counsel; viz. that the question should have been submitted to the jury, whether the claim and long continued possession by the shakers were adverse to the right and title of the true owner. There was nothing for the jury to decide. The defendant did not deny any of the facts sworn to by the witnesses for the plaintiff. He said, “ on your own testimony, there is proof of probable cause.” It is wholly immaterial, as has before been observed, whether the plaintiff’s grantors were, at the time of the conveyance, disseised of all the land they undertook t© convey ; or of m!y a part of it ; the cm*-. *172sequence as to the question of probable cause, is the same in both cases. The plaintiff could not impeach his own witnesses; and their testimony cannot by any possible construction prove anything more or less than this, — that at the time the plaintiff purchased and took his deed, his grantors were disseised of all or a part of the land in that deed described. The report states this fact in the most unequivocal language ; and the legal result is perfectly plain. The court are of opinion that the nonsuit was properly ordered. As the facts were all disclosed by the plaintiff’s own witnesses, and those facts were not contested, the question whether they presented proof of the want of probable cause, or proof of probable cause, was a question of law, which it was the duty of the Judge to decide ; and he decided it correctly.

Accordingly the nonsuit is confirmed.