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89 Me. 462

Day v. Philbrook

Supreme Judicial Court of Maine

Decided January 18, 1897

Supreme Judicial Court of Maine · decided 1897-01-18

<p> Beal Action. Lost Deed. Adverse Possession. B. 8-, a. 104, § 10- </p> <p>In a real action the plaintiff must recover, if at all, upon the strength of his own title. When he attempts to do so by proving a lost deed under which he claims title, held; that in such cases the law is very strict.</p> <p>Titles to real estate pass by deed, and when such deed has not been recorded and cannot be produced and no copy of it is in evidence, the testimony of witnesses as to the existence of such deed and of its contents must be so clear and convincing as to almost preclude the possibility of mistake.</p> <p>It would be dangerous to allow record titles to be destroyed by the testimony of witnesses, unless the testimony be very clear and explicit; and in this case held; that the testimony is not of that character.</p> <p>When the existence of a lost deed has already been considered by the court in another case between the same parties, and while that case was disposed of by nonsuit and decided nothing but that action, held; that.it is proper to refer to the opinion of the court in the former case, as bearing upon this case; and the court concludes, as it did in the former case, that the existence of such a deed as claimed in this case, is not satisfactorily shown; nor is such conduct shown on the part of defendant as to raise an equitable estoppel upon him to deny its existence.</p> <p>Plaintiff claimed title by twenty years’ adverse possession of the land that he sought to recover in this action; but, during such twenty years, the plaintiff had brought suit against the defendant to recover the same land and in that action he alleged that the defendant had disseized him and held him out of possession of the land. Held; that such disseizin and possession by the defendant would interrupt the plaintiff’s continued possession. He cannot acquire title by adverse possession while he has been disseized by the true owner of the land; and this fact he has admitted by his former writ.</p>

Cited by 7 later decisions — most recently April 1979

7 state decisions

Cited in Bouvier (1914)’s definition of “Lost Instrument”

Good law ✅— No negative treatment on recordhow we know

Decided 1897-01-18

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Haskell, J.

¶1Writ of entry to recover land. Plea, nul disseisin. The case come’s up on report. The burden is upon the plaintiff to show a legal title.

¶2I. The plaintiff contends that she acquired such title under a lost deed.

¶3No person has ever seen such a deed. There is not a scintilla of evidence of -the execution of such a deed. The only evidence is the admission of the defendant.. He is said to have made inquiries about such a deed. There was a dispute about the *468ownership of land within the limits of a discontinued road. The defendant was the grantee of a mortgagor. The mortgage debt seems to have been satisfied in some way and the notes surrendered. The presumption is just as strong that they had been paid in some other way as by a release of the equity. Defendant’s inquiries are said to have been about this supposed release, if the witnesses correctly understood him. He is described as being somewhat infirm and partially blind. He may have forgotten how the transaction of the mortgage was consummated. If he had thought it to have been by deed, his inquiry about the deed, or for the deed,- certainly should not conclude him from denying the existence of such deed. To prove a title under a lost unrecorded deed, the rule is very strict, and ought to be. Connor v. Pushor, 86 Maine, 302.

¶4The existence of this lost deed depends upon substantially the same evidence that has been considered before. Day v. Philbrook, 85 Maine, 90. That was a writ of entry between the same parties as this case, and the land demanded was the same as here, with an additional strip once covered by a town road then discontinued. If the court had been satisfied in that case of the existence of this deed, a nonsuit could never have been entered, but instead, judgment for the plaintiff for the land here demanded, at least. R. S., c. 104, § 10; Hazen v. Wright, 85 Maine, 314. While that judgment of nonsuit decides nothing but that action, Pendergrass v. York Mfg. Co., 76 Maine, 512, it is proper to refer to the opinion as bearing upon the case at bar. We conclude in this case, as we did in that one, that the existence of such a deed as plaintiff claims is not satisfactorily shown. Record titles must not be sworn away with vague recollections of what another may have said.

¶5But the plaintiff says that defendant is estopped from disputing her title, because he was present when a survey of the premises was being made, in 1869, preparatory to a conveyance by the mortgagee to her grantor. The defendant is shown to have been present, but what he said, or did, depends upon the memory of a witness of what took place a quarter of a century before. At most he was around, when Coombs, the mortgagee, was surveying this *469and other land; but little reliance can be placed upon the memory of witnesses to correctly reproduce, after the lapse of so long a period, what the circumstances were. At any rate, we are not satisfied of such knowledge and conduct on the part of the defendant as should estop him from relying upon a perfectly good record title.

¶6II. Plaintiff contends that she has acquired title by adverse possession.

¶7In 1884 she brought the action of Day v. Philbrook, argued in 1891 and decided in 1892, 85 Maine, 90. She there demanded the same land that she demands here, and alleged that the defendant in this case had theretofore disseized her of the same and then still held her out of possession thereof. How can she set up adverse possession of land, while she alleges that the true owner had disseized her thereof, and gain title by lapse of time against a man whom she alleges meantime to be in possession of the same? Such a position is absurd. We think the litigation over this land had best, this time, be ended.

¶8 Judgment for defendant.

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