Bell v. Peabody

63 N.H. 233

• Court: Supreme Court of New Hampshire
• Decided: June 5, 1884
• Status: Published

Opinion

Carpenter, J.

The action is trover for spruce timber cut from lot 9 in Randolph. The question is upon the property in the timber; and this depends upon the title to the lot. The plaintiff traces his title through a chain of recorded deeds commencing in 1840; but neither he, nor any one under whom he claims, ever entered upon the lot. He also claims under the deed of the collect- or of taxes for 1865. The warrant calling the meeting at which the taxes for that year were raised was posted at one place only. The defendants claim under a license from Wheeler & Paine, who claim title to the lot under a deed of the collector of taxes for 1876, and who entered upon the lot, surveyed it, and marked the lines and corners in 1880. They afterwards gave the defendants the permit under which they cut the timber. The warrant calling the meeting at which the taxes for 1876 were raised was posted only at one place. The result which we have reached renders it unnecessary to determine whether the sales for taxes were valid. The same objection exists to both. If the tax sale for 1865 under which the plaintiff claims, and that for 1876 under which the defendants claim, are valid, the defendants’ title is the best because it is founded upon the latest sale. If both are invalid, neither party makes a title by deed, and he who shows the earliest possession must prevail.

The defendants entered upon and took possession of the lot in 1880. The plaintiff adduces no evidence of possession at any time, either in himself or in any one under whom he claims, unless, as he contends, the deeds introduced by him are such evidence.

In this state, one who has a good title to land in the adverse possession of another may convey it by deed: his right of entry will pass by it. A writ of entry may be maintained in all cases where the demandant has a right of entry: possession is presumed to attend the title. Willard v. Twitchell, 1 N. H. 178; Hadduck v. Wil marth, 5 N. H. 188; Whittemore v. Bean, 6 N. H. 50; Concord v. McIntire, 6 N. H. 527; Warren v. Cochran, 30 N. H. 379; Dexter v. Sullivan, 34 N. H. 480. By the English common law, a deed of lands held at the time adversely by another is void. A demandant, in a writ of entry or writ of right, must, in order to maintain his writ, show an actual seizin although his title may be perfect. Seizin must be proved as an independent fact: there is no presumption that it attends the title. To this rule there are exceptions,— as, for example, if one having a right of entry is prevented from actually entering by violence or intimidation. Coke Lit., s. 419. In this country it is generally held that wild forest lands are excepted from the operation of this rule. As to them, the doctrine prevails which in this state is applied in all cases. To entitle a demandant in a writ of entry or of right to recover such lands, it is sufficient to show a legal title to them: the seizin is presumed to attend the title. Jackson v. Sellick, 8 Johns. 262, 270 ; Bradstreet. v. Clarke, 12 Wend. 602; Creen v. Liter, 8 Cranch 229; Ward v. Fuller, 15 Pick. 185; Green v. Chelsea, 24 Pick. 71. But it is essential that title be shown; otherwise there is no foundation for ¿he presumption. Green v. Liter was a writ of right to recover wild' and unoccupied lands. The fifth question submitted was, “Can a demandant, who has obtained a patent for the land in contest-from the state of Virginia, maintain a writ of right against a person claiming and holding possession under a younger patent from the-same state, without having first taken actual possession of the land?” It was held that he could, upon two grounds, — first, that a grant by the sovereign conveys an actual seizin without entry; and second,, that a grant by the owner of wild lands has the same effect. In-reading the opinion of the court, it is to be borne in mind that the demandant had, as against the tenant, a perfect title. There is no-intimation that a deed is, in the absence of title shown in the-grantor, evidence of seizin in the grantee; and the case is not relevant upon the question.

Ward v. Fuller, supra, was a writ of right. The demandants claimed as heirs-at-law of Jane Pigeon, who took the estate by devise under the will of Edward Dumaresque, executed in 1763 and proved in 1767. To prove the seizin of Dumaresque, deeds of the-land from Allen to Barrett in 1729, and from Barrett to Dumaresquein 1736, a deed of division between the heirs of Allen in regard to-other lots in the same tract in 1747, and several deeds made by Dumaresque and reconveyances to him of the same lot, were received in evidence, and there was no other evidence of either seizin- or title. The jury were instructed that a deed, duly executed,, acknowledged, and registered, gives a seizin defacto to the grantee and a prima facie title. This instruction was held correct. The-court said, — “The seizin of the grantor is undoubtedly necessary to give effect to his conveyance, and without this it would be inoperative. But how may this seizin be proved? — and is the deed itself any evidence of it? Must every one relying upon a deed in-support of his title be compelled to show the seizin of the grantor before he can be allowed to give the deed in evidence ? We think not. It would in many cases be impracticable, and thus exclude the highest and most certain evidence of title. We have already seen that a deed of conveyance, acknowledged and recorded, is-equivalent to feoffment with livery of seizin ; and as this could be perfected only upon the estate conveyed, the deed itself may be-considered as presumptive evidence that the grantor had suchseizin as would render operative the act done by him. The legal presumption is, that seizin follows the title, and that they correspond with each other. Surely he who can trace his title through a chain of recorded conveyances, although without proof of entry or occupation by any one, should have a preference over him who-has neither title nor possession. But it is only prima facie evidence, and is liable to be rebutted and disproved. And the rule which we here intend to establish is, that in the absence of other-evidence the deed itself raises a presumption that the grantor had-sufficient -seizin to enable him to convey, and also operates to vest the legal seizin in the grantee.” This doctrine is followed in Williston v. Morse, 10 Met. 25, Burridge v. Fogg, 8 Cush. 183, Mara v. Pierce, 9 Gray 306, Whitman v. Railroad, 3 Allen 139, and Farwell v. Rogers, 99 Mass. 33, and seems firmly established in Massachusetts.

Mara v. Pierce, above cited, was a writ of entry tried upon the general issue. The demandant put in evidence the didy recorded deed of one Hathaway, conveying to him a part of the demanded premises, and produced no other evidence. The tenant introduced no evidence. It was held that the demandant was entitled to recover. The court said, — “Under the plea of nul disseizin and nothing more, it would certainly be incumbent on the demandant to show a title to the premises in himself, and a failure so to do would be a failure to support his action. * * * The demand-ant introduced a deed from Hathaway of this lot to him. This was enough if the defendant had not a title older than the date of that deed. Previous occupation under a claim of title would have been sufficient to show an older and better title in the tenant, and require the demandant to connect himself with some earlier title.” It was admitted by the pleadings that the tenant was, at the date-of the writ, in possession claiming the freehold. If he had proved that he had been in possession, claiming title for any period less than twenty years, but not prior to the date of Hathaway’s deed, the result would have been the same. Hence, in that state a demand-ant, who can merely show a deed of the premises executed and recorded prior to the tenant’s possession, may prevail, although the latter may have occupied and improved the lands under a claim of title for twenty years lacking a day.

If, in an action of trespass, it should happen, as it often might, especially in the case of wild lands, that the defendant was unable to show that the plaintiff was not in possession and had no title, he might, after satisfying a judgment for damages obtained against him upon such evidence, be compelled to pay damages for the same trespass to the true owner.

No such view of the law has ever obtained in this state. It has always and universally been understood that the mere production of a recorded deed, with no evidence of possession, is insufficient to establish & prima facie title even as against a confessed wrongdoer. The precise question was raised and decided in Graves v. Amoskeag Co., 44 N. H. 462. The action was a writ of entry. The plaintiff produced and proved duly executed, acknowledged, and recorded deeds, as follows: Harvey to Parker, dated Jan. 5, 1808; heirs of Parker to Palmer, dated Nov. 7, 1842; Palmer to the plaintiff Feb. 4, 1849, and no other evidence. The defendant introduced no evidence. The court ruled that the plaintiff could not maintain his action, and this ruling was sustained. Bell, C. J., says, — “ Upon the general issue neither party can deny the actual possession of the defendant. Having the possession, the title of the defendant is perfect against everybody who does not show a better right. All title rests on possession either actual or presumed. No possession is presumed in favor of any person but the sovereign. The state is presumed do be the owner and in possession of all bona vacantia, of all lands to which no other person has title, and the possession of the state is held always to accompany its title. If, then, the plaintiff derives his title from the state or sovereign, it is not necessary to show any actual possession until some adverse individual title is shown. In every other Case the plaintiff must show an actual possession in himself or in some person under whom he claims, or he shows no title which can avail him. Now in the present case the plaintiff did not show a title derived from the sovereign nor from any person shown to have been in actual possession, and he offered no proof that he had been in actual possession himself of the premises to which he lays claim. The deeds he offered did not show any title. They were evidence of transfers of any title which the grantors had, but they did not show that any of the parties to those transfers had any title, and it was not shown in any other way that either of them had any title. The plaintiff’s proof then failed wholly, and the ruling of the court was correct.”

The same view of the law prevails in Michigan. Smith v. Lawrence, 12 Mich. 431.

The statute providing that real estate may be conveyed by deed, “without any other act or ceremony whatever” (G. L., e. 135, s. 1), merely enables one to convey by deed whatever estate or interest in land he may have and can lawfully convey. It does not purport and was not intended to give such deed the same effect in all respects as a feoffment with livery of seizin at common law, by which the possession necessarily passed. Livery of seizin was the manual tradition of the possession. Although the feoffor was tenant at will or by sufferance, or had nothing in the land except the naked possession gained by an entry made at the time, his feoffment with livery effected a disseizin of the owner (at his election at least), and passed an estate of freehold to the feoffee. A deed of one not in possession cannot effect a disseizin of the true owner even at his election : nothing not in the grantor at the time can pass by it.

But the plaintiff fails even under the Massachusetts doctrine. His prima facie case made by the production of the deeds is effectually rebutted by the finding that neither he nor any one under whom he claims ever entered upon the lot.

Conceding that a conveyance under the statute by a collector of taxes is a grant by the government, and that therefore actual seizin passes by it, the deed in order to have that effect must be a valid one — a deed which the collector was authorized to make. If he had no authority from the government to make the conveyance, or if for any reason it was invalid, neither title nor seizin passed by it: it was not a grant by the government. If, on the other hand, the collector’s deed under which the plaintiff claims is valid, that under which the defendants claim is also valid, and, as we have already seen, gives the defendants the better title.

Judgment for the defendants.

Blodgett, J., did not sit: the others concurred.