Cutler v. Lincoln

Wilde, J.*

Both parties in this case derive their titles respectively from Ira Lincoln, formerly the tenant’s husband, but from whom she was divorced subsequently to his deed to the demandants, which is dated 13th of December, 1844. The tenant’s title is derived from two mortgage deeds, including the demanded premises, made by Ira Lincoln in ^837 and 1838, conveying the same to Newell Lovering and Joseph C. Lovering, and which were assigned to the tenant on the 1st of June, 1844, with the consent of her husband, and were paid for by her with her separate property; it being the distributive share, under a probate decree, in the estate of her deceased brother, and which had never been reduced to possession by her husband.

It was argued for the demandants, that by this assignment of the mortgages, the mortgage debts were extinguished, and that as against the husband they were void, notwithstanding his assent to the assignment.

This point has been much discussed, and many authorities, some of which seem to be conflicting, have been cited by counsel; but I shall not refer to the authorities cited, because it is not necessary to decide this point, as, on another point, we are of opinion, that this action cannot be maintained. It seems to me, however, that admitting that the mortgage debts were extinguished by the assignments, the legal estate was not thereby revested in the husband, and that by his quitclaim deed to the demandants, nothing passed but his equitable title. Such would have been the effect of the payment of the mortgage debts, and the extinguishment of them by the assignment, if extinguished they were, would seem to have no other effect.

But if the tenant has no title, the legal title is in her minor children, provided the deed from Eli Phipps and Sarah Whiting to them is admissible in evidence. This evidence was rejected at the trial, on the ground, that in a writ of entry the tenant is not allowed to prove a title in a third party paramount to that of the demandant, unless he can first prove that he has a lawful claim and right under such party. This is undoubtedly a well established principle of law : But this evidence was offered by the tenant, not for the purpose of proving a title in her children, paramount to that of the demandants, but to prove that the demandants had never been seized of and had no title to the demanded premises. And it is a well established principle, that in a writ of entry, or in a writ of right, the tenant may disprove the demandant’s seizin or the. seizin of his ancestor. Jackson on Real Actions, 4, 157; Stearns on Real Actions, 365, 380 ; Hall v. Stevens, 9 Met. 418, 421.

If the demandant counts on his own seizin, and has no evidence tending to prove that material fact, his action must fail, although the tenant has no title but possession ; and, for the same reason, if the demandant introduces prima fade evidence of his seizin, the tenant may disprove such a prima fade case. And the evidence offered in this case would clearly prove, that nothing passed by the deed of Ira Lincoln to the demandants. This right in equity, after he had mortgaged the premises, as before stated, and before his deed to the demandants, was taken on execution and sold to Eli Phipps and Sarah Whiting. Nothing therefore passed by his deed to the demandants. The parties now agreeing to the facts oifered to be proved by the tenant, and to state them as a part of the ease reported, the verdict is to be set aside, and iudgment is to be entered for the tenant.

* Metcalf, J., did not sit in this case.