Cofran v. Cockran

5 N.H. 458

• Court: Superior Court of New Hampshire
• Decided: September 15, 1831
• Status: Published

Opinion

RichaRdson, C. J.

delivered the opinion of the court.

It is said, on the part of the tenant, in this case, that tbe deed of the 11th October, 1825, in the name of the committee, was not, in law, sufficient to pass to the de-mandant the title of the town of Candia. To this it is answered in the first place, that the deed in the name of the town, was a confirmation of the deed in the name of the committee, and made it sufficient from the beginning. If the defect in the deed, in the name of the committee, had been only that the committee wanted authority from the town to convey, the deed in the name of the town confirming the other deed might perhaps have been considered as a ratification of the doings of the committee, and have made the deed, in their name, valid from the beginning. But the objection to the deed in the name of the committee,is not that the committee wanted authority, but that the deed is not, in law, sufficient to pass the title. And we are of opinion, that this is a defect, which, if it really exist, no ratification or confirmation can cure. The deed in the name of the town may be in itself sufficient to pass the title ; but we think that no confirmation can give validity to a conveyance, which is invalid, because it is in a shape, which must in law be adjudged insufficient to pass the title. A confirmation cannot change the law and make an estate pass in a mode which the law does not allow. We are, therefore, of opinion, that the deed in the name of the town adds nothing to the validity of the deed in the name of the committee, and is not entitled, as it was made since the commencement of this suit, to have any weight in the decision of the cause.

But it is further said, on the part of the demandant, that the deed in thé name of the committee was sufficient to pass the land.

The general rule is, that when land is conveyed by an agent, it must be by a deed in the name of the principal. 4 N. H. Rep. 102. It has, however, been decided in Massachusetts, that when an individual conveys land as an agent of the commonwealth, under a resolve authorizing him to convey, a deed in his own name may be sufficient. 6 Pick. 409, Ward v. Bartholomew. But this decision is placed by the court on the ground, that the practice of so conveying the lands of the commonwealth had continued for sixty years, and that the land passed by the resolve rather than by the deed.

Towns cannot now pass the title to real estate by a vote, but it deserves consideration, whether, if the lands of towns have been so long and so frequently conveyed by agents in their own names, that to hold such conveyances invalid would produce great public mischief and inconvenience, the common error has not given validity to this form of conveyance ? We think it can be supported on no other ground.

A search has been made in the offices of the registers of deeds in the several counties, and it appears'that within thirty years last past, deeds to the number of nearly three hundred have been put upon record, by which lands belonging to towns have been attempted to be conveyed in the same manner as in this case. And it is not doubted, that from the earliest times, when agents have been authorized to convey lands belonging to towns, the conveyance has been made most generally in the name of the agent, ft is impossible to calculate the mischief, inconvenience and hardship, which may follow -a decision, that nothing passes by such a deed. And we are of opinion, that the maxim “ communis error fácil jus," must settle this case. The practice has been too long in existence, and too general, to admit the validity of such deeds to be called in question, and there must be

Judgment on the verdict-