Mallett v. Foxcroft
U.S. Circuit Court for the District of Maine
Writ of right for two lots of land (No. 11 in the fourth range, and No. 11 in the fifth range) in Lee, Penobscot county, Maine. The -count was on the demandant’s own seisin within twenty years. Plea, the general issue.
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Writ of right for two lots of land (No. 11 in the fourth range, and No. 11 in the fifth range) in Lee, Penobscot county, Maine. The -count was on the demandant’s own seisin within twenty years. Plea, the general issue. At the trial, it appeared, that the real question between the parties was merely one of title; both parties claiming under an original grant of the commonwealth of Massachusetts to Williams College of a tract of land of 23,040 acres, of which the demanded premises were parcel. At the trial, Mr. Paine, for the demandant [David Mallett], made out a regular deraignment of title…
1Opinion of the Court
STORY, Circuit Justice.
We are of opinion, that the objection is unmaintainable in point of law. The present suit is a writ of light, and no judgment in a writ or petition for partition will constitute any bar to the maintenance of a writ of right between the same parties. A writ of partition, or a petition for partition, which is but a substitute for the former, is a mere possessory action; and, at most, a judgment in a possessory action, can bar only an action of as high a nature, that is, a possessory action; for the judgment only establishes the right of possession. But a writ of right is…
2Cited by3 opinions
- Carl v. KnottSupreme Court of Iowa · 1864
- McDonald v. Bear River & Auburn Water & Mining Co.California Supreme Court · 1860
- Sykes v. BonnerOhio Superior Court, Cincinnati · 1871