Fellows v. Fellows

37 N.H. 75

Opinion

Bell, J.

The admissibility of the office-copy seems to have been of interest, chiefly as it affected the burden of proof. There was a witness to the deed living, and the struggle seems to have been who should put him on the stand. The general rule is that where a deed is alleged to be lost, it must be first proved that such a document existed, though slight evidence is sufficient for this purpose, and that a bond fide and diligent search has been made for it without success, in the places where it was most likely to be found, before secondary evidence of its contents can be introduced. 1 Greenl. Ev. 396, 593; 2 Cowen & Hill’s Notes to 2 Phil. Ev. 420.

In many cases, proof of the contents of a deed incidentally comprises evidence of the existence of the original; but in others the proof of the copy affords no evidence of the genuineness or validity of the instrument copied. In the present case the proof of search was sufficient, but no evidence of the existence of the original was offered, except such as results from the character of the copy. If it were an ordinary copy merely, it would not be admissible, without some evidence of the execution and validity of the original.

The tenant here was shown to be the devisee of N. Eel-lows, Jr., the grantee of the deed in question; and it is said in her behalf, that, having shown her title by devise, she is entitled to nse office-copies of the several deeds which form the earlier links in the chain of her title. But the demandant denies the applicability of the ordinary rule in this case, because the tenant is not merely the devisee, but is the executrix and residuary legatee of the testator, and as such entitled to the custody of his deeds and papers. It is said office-copies are admissible only on the presumption that as the immediate holder of the property has here usually the custody only of the deed under which he claims personally, the earlier deeds are not in his hands and control. "When, therefore, the law presumes that the devisee has, as executrix, the custody of the testator’s deeds, she ought to be bound to produce them, as the testator would be himself. Perhaps it might be enough to suggest that the evidence of- search disproves the presumed fact of possession, and leaves the case in the- same position as if the tenant were devisee only. But we are of opinion that whatever presumption may be supposed to have given origin to the rule, the ordinary rule, long recognized here, is that a party, after proof of the original deed to himself, or of his title by devise, or descent, or by extent, or otherwise, may use office-copies of deeds to which he is not a party, but which constitute part of his chain of title, as primd facie evidence, without showing the loss of the originals. And if the copy produced purports to be of a deed regularly executed, acknowledged and recorded, the copy will be regarded as prima facie evidence of these facts, as well as of the contents of the deed. Southern v. Mendum, 5 N. H. 428; Pollard v. Melvin, 10 N. H. 557; Forsaith v. Clark, 21 N. H. (1 Foster) 422; Harvey v. Mitchell, 31 N. H. (11 Foster) 582, and cases there cited.

2. The question as to the delivery of the deed seems to have been properly submitted to the jury. It was competent for them to infer, from circumstantial evidence, that a deed, which was not delivered at the time of its signature and acknowledgment, but was deposited in the hands of a third person, for some special purpose, was subsequently properly delivered by the grantor to the grantee.

3. The demandant claimed one seventh of the property in question, by a conveyance from his sister, Phila Brown. In a conversation between her and her mother and sister, while they were living together in the house on the premises, and before her deed to the demandant, she stated in effect that her brother, Nathan, Jr., owned the farm, and she had no right there. This evidence was competent, because, being made at a time when she was in the occupation of the property, it gave a character to her possession ; Bradley v. Spofford, 23 N. H. (3 Foster) 446; Walcott v. Keith, 22 N. H. (2 Foster) 196; Cilley v. Bartlett, 19 N. H. 323; and because, being- the statement of the demandant’s grantor, while she held the title under which the demandant now claims a share of the property, he was as much bound by it as if he had made it himself. Adams v. Smith, 2 N. H. 389; Doe v. Fettitt, 5 B. & Ald. 223; Smith v. Smith, 3 Bing. N. C. 29; Inat v. Finch, 1 Taunt. 141; 1 Phil. Ev. 39 ; 1 Cowen & Hill’s Notes 265; 1 Greenl. Ev. 221; Garnsey v. Fdwards, 26 N. H. (6 Foster) 231; Downs v. Lyman, 3 N. H. 487.

4. It is not seen on what principle the declaration of N. Fellows, Jr., testified to by Collins, can be admissible. It is not part of the res gestee, because the fact of his coming to the house in the manner stated was not material; and because what was said threw no light upon and gave no character to the act, if it had been material. It seems, however, the declaration was merely immaterial.

5. The testimony of J. Blake was incompetent. Neither of the parties to the conversation, or the negotiation, stood in such a relation to the demandant as to make their acts or declarations evidence against him. He claimed nothing under either of them. He was not present, nor any person for him. The written representation to the court of probate was merely a statement of third persons, by which the demandant was not bound.

6. It is suggested that this evidence, and the testimony of "W. Eaton, as to the declarations of Dorothy, the widow, were introduced to rebut the evidence of Dorothy’s possession, as adverse to Nathan, Jr. As the widow was in the occupation of the farm, her declarations might, under some circumstances, be admissible evidence to give a character to her possession, but there is here no question as to her possession. The demandant claims no title under her, and makes no pretence she was in possession under him, or any of the heirs whose shares he claims. Her possession consequently was merely immaterial, and what she said in regard to it was inadmissible.

7. There seems to be no valid objection to the testimony of the neighbors, as to the manner of the plaintiff’s occupation of the farm, and the absence of adverse claims. To establish a title by adverse possession, it is essential to show possession under a claim of title. The fact of such claim may generally be shown by unequivocal acts or declarations ; but, when this cannot be done, evidence of the manner of occupation, as tending to show the right claimed by the occupant, and the conduct of others, as tending to negative the idea of possession under a license or lease, may be introduced; and upon such circumstantial evidence a jury would be warranted in inferring that the possession was held under a claim of title. Any circumstances tending to show that the possession was held by the permission or acquiescence of others, would weigh heavily against the occupant. The absence of such circumstances ought surely to weigh in his favor.

The testimony of Blake and Eaton being improperly admitted, there must be

A new trial.