Bachelder v. Green

38 N.H. 265

• Court: Supreme Court of New Hampshire
• Decided: July 15, 1859
• Status: Published

Opinion

Sawyer, J.

Whether the title of real estate is in question in an action of trespass, is sometimes to be determined from the pleadings, and sometimes from the course of the trial. In the latter case, it is not enough to put the title in question in such action, that the plaintiff may be required, under the circumstances of his case, to produce evidence of title in order to establish the possession which is essential to this form of action; or that, when introduced, the defendant makes it a question to the jury whether the evidence is true, or to the court, whether, if true, it shows title in the plaintiff. All this may be done without the defendant’s setting up a title or claim in opposition to the plaintiff, and supporting it by evidence in conflict with his. By the rule established in Forsaith v. Clogston, 3 N. H. 401, and ever since recognized as the true rule upon the subject, such conflict of claim, sustained by evidence on the part of the defendant, would seem to be necessary to bring the title in question, when not put in issue by the pleadings;, within the meaning of the act which provides for the limitation of the costs. This view is strongly supported by the provision of the statute which regulates proceedings in trespass before justices of the peace, prohibiting the defendant in such action from offering evidence under the general issue that may bring the title in question, which has never been construed as compelling the defendant to admit the plaintiff’s title when the circumstances of his case required proof of title to maintain the action, but as leaving him at liberty to question the title as shown by the plaintiff, though not to rebut it by countervailing proof.

It must be understood, from the bill of exceptions, that the plaintiff introduced, at the first trial, paper evidence of title for the purpose of establishing his possession, such as is necessary to maintain trespass, and which he might not be able to make out independent of the title. The defendant was then at liberty to raise any question, either to the court or the jury, affecting the validity of the title which arose upon the plaintiff’s evidence, without bringing the title in question, within the meaning of the statute. He went beyond this, by introducing evidence to countervail the title to the locus in quo, as shown by the plaintiff. His evidence was of a character to prove that the east line of the close, according to the plaintiff’s title, and so far as the land was covered by it, excluded the place where the trespasses were alleged to have been committed. This was as effectual, if made out, to rebut the plaintiff’s title and thus disprove his constructive possession as to that part of the close, as if, with or without the plea of liberum tenementum, he had proved the title of that part to be in himself, or a third person. It clearly brought the title in question.

And we think it is immaterial whether the question was thus made upon the first trial, which resulted in no verdict, or at the second, in which the verdict was found, or at both. The object of the statute is to discourage the bringing of suits in the higher courts for trespasses of a trivial character, when the title is not brought in question; and the propriety of bringing the suit in the Common Pleas is made apparent whenever, upon a trial had, the title is in fact brought in question, although at a subsequent trial the ground for questioning it is abandoned. It must be supposed that the proceedings upon the first trial in the investigation of the title led to the abandonment by the defendant of further controversy on that point as fruitless. The exceptions must be overruled, and the

Judgment affirmed.