's hand. Pleadings Book, p. 31–
. The writ, dated 6 Feb. 1771, was probably drawn by Robert Treat Paine, who appeared
for Brayton at the March 1771 Taunton Inferior Court, where the jury returned a verdict
in Brayton's favor for possession and costs. On the appeal
joined Paine as counsel for Brayton. At the Superior Court's Oct. 1773 term, again
at Taunton, the prior judgment was affirmed. See Robinson v. Brayton, SCJ Rec.
1773, fol. 152; Min. Bk. 100, SCJ
Bristol, Oct. 1773; SF
145772. The “writ of intrusion” is a form of writ of entry proper when the plaintiff
(or “demandant” as he was technically known) was a remainderman or reversioner after
a life estate, who had been ousted by an “intrusion” (an entry by a stranger after
the life estate had terminated and before the remainderman had entered). See Stearns,
49, 143, 179–180. For another form, see id.
at 443–444. As to the requisites of pleadings in writs of entry generally, see id.
at 149–161. Compare notes
, above, and No. 17, notes 3–7
. Israel Brayton, plaintiff here, had received a reversionary interest in the lands
in suit by devise from his grandfather, Preserved Brayton, who had died in 1761. Preserved
in 1753 had assigned a life interest in the lands to his daughter-in-law, Ruth Brayton
(Israel's mother), in lieu of her dower interest in certain lands once owned by her
husband John Brayton, which she had not released. Previously, in 1736 Preserved had
sold or given these lands, which included those in suit, to John under a duly recorded
conveyance. John sold them back to Preserved in 1743, but seemingly destroyed the
deed before it could be recorded. John then sold the property to William Sherman,
but in 1744 Preserved was able to obtain possession in an action of ejectment against
Sherman at the Superior Court, in which he was allowed to prove the making of his
deed from John and that Sherman had had actual notice of it. In 1770 Ruth Brayton
died, leaving her daughter Elizabeth Brayton Robinson in possession of the premises
for which Israel sued. See documentation in SF
145772 and a summary of the title in Paine's hand in MHi
:Photostats (1768). In opposition to Israel's suit Elizabeth apparently claimed that
the 1743 conveyance from John to Preserved was ineffective and that she was entitled
to a share in the property under her father's estate.
's minutes of the argument on this question show that he urged authorities to the
effect that Preserved's 1744 judgment could be admitted as evidence of his title,
and that, in the alternative, depositions and oral testimony as to the fate of the
deed and its contents were admissible. Adams Papers, Microfilms
, Reel No. 185. A note with
's Oct. 1772 Docket records that the “Court determined unanimously that Evidence should
be admitted of the Deed from Jno. Brayton to his father and of the Destruction of
it,” an apparent straightforward application of the so-called best evidence rule.
Although this note indicates that the question was decided in Oct. 1772, the Paine Law Notes
date the argument in Oct. 1773.