Barry v. Adams

Chapman, J.

The difficulties in which this case has become involved are easily solved by a careful examination of the evidence.

The title of Lewis Smith in September 1839 is not denied. He conveyed the land to Brown ; from whom it passed through (loodnow to Miller, and Miller conveyed it to Benjamin A. 1 atten and the demandant, February 13th 1854. Patten conveyed his undivided half to the demandant November 19th 1858.

After this, a writ of entry was brought by the demandant and Patten against the tenant. On the trial of that action, the tenant did not deny the title of the demandant and Patten, so far as the deeds could make it; but she put in evidence the deed of Patten to the demandant, and thereupon contended that the action could not be maintained upon the pleadings, because Patten had no longer any title.

The demandant contended that the deed of Patten to him conveyed no title, because they were disseised by the tenant at the time it was executed. The tenant, on the other hand, contended that it was valid, because she had not then disseised them. The question was put to the jury, and they found that her disseisin did not commence till after the making of the deed on the 19th of November 1858. On that ground she defeated the action. The record in that action, together with the special verdict and paroi proof of the ground of defence taken by the tenant, were properly admitted in evidence in this at tian. Eastman v. Cooper, 15 Pick, 286. Dutton v. Woodman, 9 Cush. 261. McDowell v. Langdon, 3 Gray, 513. Perkins v. Parker, 10 Allen, 22.

But the tenant sets up in this action another defence. She put in evidence at the trial a deed of the demandant to Sophia Barry, dated May 28th 1859, which was after her disseisin commenced. If this deed had conveyed a good title, it would have been a good defence ; because it would have proved that this action ought to have been brought by Sophia Barry, and not by the demandant. To meet it, the demandant put in evidence the record of a suit in favor of Sophia Barry against the tenant, commenced September 10, 1859, in which the tenant recovered judgment on the ground that this deed conveyed no title to Sophia Barry, because the demandant was disseised when he made it. Therefore that deed constitutes no defence to this action.

The demandant offered in evidence a deed from Sophia Barry to him, dated September 29th 1859, while her action against the tenant was pending, purporting to reconvey the premises to him. This deed ought to have no influence upon the present case, because, as Sophia Barry took no title from the demand-ant, she had none to reconvey. The only effect of its introduction was to raise a useless question. All the evidence as to the title of Sophia Barry ought to have been treated as immaterial to the decision of the case. But the evidence in respect to the action of Patten and the demandant ought to have been helu sufficient, in connection with the deeds under which the demand-ant claims, to maintain the action. Exceptions sustained.