Davis v. Stevens

The only question raised in this case relates to the title of the complainants to the land described in their petition.

That they are the owners of nine undivided tenth parts is conceded. The other tenth is in dispute. To maintain their title to this, the complainants introduce a quitclaim deed, from Joel W. Haskell to themselves. It, however, appears that Haskell claimed *599under one John C. Collins, by virtue of an attachment and levy. During the pendency of the suit, in which the attachment was made, Collins was not an inhabitant of this State, had no notice except by publication, and made no appearance. Judgment was entered on default and execution issued within the year, without filing the bond, as required by R. S., c. 82, § 4. This being contrary to law, the execution and the levy under it were not voidable merely, but absolutely void. Penniman v. Cole, 8 Met. 496. And it is immaterial who the adverse party may be. Downs v. Puller, 2 Met. 135. Smith v. Dow, 51 Maine, 21, and cases cited. As Haskell took nothing by his levy, his deed conveyed nothing to the complainants ; so far as appears, the title to this undivided tenth still remains in John C. Collins.

But the complainants further claim title by virtue of a quitclaim deed from Cassa E. Collins. This deed covers all of the premises described in the petition. In it, as we learn from the argument of complainants’ counsel, the grantor describes herself as the widow of Aaron Collins, and the land, “ as all the real estate that the said Aaron owned at the time of his death.” This would convey her interest in the land owned by said Aaron at his death, obtained by her as his widow, and would seem to be an appropriate description for this purpose, and not for any other. It recognizes the title of Aaron at his decease, and suggests no change of title other than that made by the law of descent. It does appear that she had a right of dower in the premises, but it does not appear that she had, or intended to convey, any greater estate. It is also evident that the complainants did not rely upon it as conveying any interest greater than that of dower, from the fact that they have taken and produce deeds from the several heirs, purporting to convey the remainder of the estate. Giving the deed, then, such a construction as will best give effect to the intention of the parties, it conveys but a right of dower. Nor will it avail the complainants if we so construe it as to convey a greater interest. As already seen, it recognizes the title of Aaron Collins as better and prior to that of the grantor. There is no proof that he ever parted with his title, ex*600cept by death, nor that his title ever became vested in her. It having been once in him, the presumption of law is, that it so remains until there is proof to the contrary. In this case there is no proof to the contrary, except the deeds from the heirs, one of which, as we have seen, conveys nothing. The result is that the complainants have proved a title to only nine-tenths in common and the widow’s dower. Under such a title the complaint cannot be maintained. Tacker v. Campbell, 36 Maine, 346.

Complainants nonsuit.