Gibson v. Bailey

9 N.H. 168

• Court: Superior Court of New Hampshire
• Decided: July 15, 1838
• Status: Published

Opinion

Parker, C. J.

This case presents a “ comedy of errors.” The demandant claims title by virtue of a conveyance of four sevenths of the demanded premises from Luther Barnes, one of the heirs of Cyrus Barnes, deceased, who, at the time of his death, held a mortgage of the whole tract. It became the duty of Samuel Barnes, the administrator, to proceed and foreclose that mortgage, if the money was not paid. And he might, for this purpose, have maintained an action. 2 N. H. Rep. 71, Bickford vs. Daniels. But we are not aware of any rule that requires the administrator, in such case, to proceed by action, if the mortgagor is willing to surrender the possession. He may foreclose by peaceable entry, and a possession of one year, without process, as the mortgagee himself might have done. The case shows that Samuel Barnes entered for that purpose, and he must of course be presumed to have entered as administrator. The possession of his lessees was sufficient. 4 N. H. Rep. 424, Kittredge vs. Bellows.

The connexion of Luther Barnes with these proceedings, he being one of the heirs of Cyrus, results from matter of law.

The administrator had a right to attempt to enforce the payment of the money, by pursuing all the remedies the law gave for that purpose. One of these remedies was by proceeding to foreclose the mortgage, if the money was not paid. But having failed to obtain the money, and the mortgage having been foreclosed, the legal estate was vested in the heirs, subject to the rights of the administrator as trustee, whatever those rights may be in this state. 1 Williams on Executors 431, 432, if note h ; 2 Powell on Mortgages, by Coventry Rand, 666, and note E ; 3 ditto 968, 970 and note N; 2 Vern. Rep. 66, Clerkson vs. Bowyer; 3 Johns. Ch. Rep. 145, Demarest vs. Wyncoop ; 16 Mass. 23, Smith vs. Dyer ; 5 N. H. Rep. 429, Southerin vs. Mendum.

Whether the administrator has, in such case, any right to sell, except under a license from the judge of probate ; and whether the property, when the mortgage is foreclosed, is to be distributed as personal estate ; or whether, in case the administrator does not sell, it is to be treated as if the absolute fee had been conveyed to the intestate at the date of the mortgage, so that a widow would be entitled to dower only ; are questions upon which it is not necessary for us now to express an opinion. Vide N. H. Laws 334, 335, 367, 370.

In this case, a sale of the land does not appear to have been necessary for the payment of debts, nor was there any widow. Whether the mortgaged estate be considered as real or personal property, the shares of the heirs would be the same ; and, as no further proceedings were had by the administrator after the foreclosure, it may be taken, on the facts before us, that Luther Barnes had a title to one seventh of the demanded premises. The legal and beneficial interest were vested in the same persons. 5 Conn. Rep. 137, Opinion of Hosmer, C. J.

But there is no evidence to show that Luther Barnes ever had any title to more than one seventh ; and the demandant; therefore, can have no greater right. To this extent her action is supported, unless the title of her grantor, or of herself, has been in some way divested or defeated-

The tenants set up a title in one Mazelda Keyes, claiming to be his tenants for years. They should have pleaded that they were not tenants of the freehold, and defeated the writ. But, having filed the general issue, they admit that they are in possession, claiming a freehold. 8 N. H. Rep. 477, Sperry vs. Sperry:

It is conceded that they have no title. If, therefore, the demandant had shown herself to have been in actual possession prior to the tenants, she must have recovered against them. Because, having a color of title, and having been actually"seized; and the tenants having no title, and not being able to rebut her seizin, they could have had no rights against her, whatever might be the rights of others.

But the demandant shews no actual possession of herself, or of Luther Barnes, her grantor. And the defence is, that the land was duly sold for taxes, after the foreclosure of the mortgage, and before the conveyance by Luther Barnes to the demandant; and that the title thus acquired has been conveyed to Mazelda Keyes, the lessor of the tenants.

Proof of these facts, then, will rebut the demandant’s seizin, and thus furnish a defence against her. 2 N. H. Rep. 522, Bailey vs. March; 3 N. H. R. 284, S. C.; 5 ditto 156, Berry vs. Brown. If Luther Barnes had no interest in the land at the time of his conveyance, the demandant has never had actual or constructive seizin.

For the purpose of showing this, the tenants put into the case deeds which show that Keyes can probably have a valid title to but a very limited interest in the property.

Thirston, as collector of taxes, conveys to Gage, who, for a certain consideration, alleged to have been paid by Sarah Cram, conveys to “ Sarah Cram, her children and assigns.” A conveyance to the heirs of a deceased person has been held to be good. 12 Mass. 447, Shaw vs. Loud. A conveyance to the children of a particular individual, would seem to be within the same principle ; and, if so, this deed conveyed the land to Sarah Cram and her children, as tenants in common. John Cram, her husband, then conveys the fee to Keyes. Her name is to the deed, but the acknowledgement of the receipt of the consideration is by him, and the words of grant, covenant, &c., are his alone. There is nothing on the face of the deed to show why she signed it.

But, whatever portion of the land was conveyed by Gage’s deed to Sarah Cram, of that John Cram was seized in her right, and his conveyance passed the right of possession. According to some cases, the mere signature of Mrs. Cram would convey nothing from her. 9 Mass. 161, Lithgow vs. Kavenagh ; ditto 218, Catlin vs. Ware; 10 Johns. 435, Jackson vs. Sears. The authorities in this state are somewhat different, but they do not come up to this case, and it is questionable whether this deed passed the title of Mrs. Gram. 2 N. H. R. 402, Gordon vs. Hayward; ditto 525, Elliot vs. Sleeper. But this question is unimportant here, for if the land has been duly sold for taxes, and conveyed to any third person before the conveyance by Barnes to the demand-ant, the tenants may show the title of such person, to rebut the demandant’s seizin. For this purpose it is not necessary to show a title in their lessor.

This brings us to the proceedings of the town, under which the land was sold for taxes, and the proceedings of the collector in making the sale.

And here it is admitted there are divers defects, which are fatal if they cannot be cured. 6 N. H. Rep. 182, Proprs. of Cardigan vs. Page; ditto 194, Nelson vs. Pierce.

The return of the posting up of the warrant for the town meeting is insufficient. It does not state when it was posted up. Nor does it show that it was posted at a public place.

It does not appear that Thirston, who was chosen collector, took the oath of office prescribed by law.

And there are defects in the return of the collector, to which exceptions have been taken.

The tenants move that these proceedings may be amended.

It has been already settled that the records of towns may be amended, to conform to the truth of the fact. 3 N. H. Rep. 513, Bishop vs. Cone; 11 Mass. 477, Welles vs. Battelle; 6 N. H. R. 182.

The amendment must be made by the person who was in office at the time. 2 Pick. 397, Taylor vs. Henry.

It seems probable that in the prior cases where amendments have been allowed, the officers who were permitted to make them were not in office at the time ; if they were, it must have been under a subsequent election, and the right to have the amendment made cannot depend upon the question whether the officer has again been elected.

The form in which such amendments are to be made, has never yet been- settled. It would be very dangerous to sanction alterations of the books themselves, by erasures and in-terlineations. And we are of opinion that they should be made only upon evidence showing the truth of the facts, and then by drawing out in form the amendment which the facts authorize. The amendment, with the order under which it is made, may then be annexed to the books where the original is recorded, so that the whole matter will appear ; and, in furnishing copies, the original and amendment should both be furnished.

But it is objected, on the part of the demandant, that no amendment ought to be made to her prejudice. That when she purchased, these defects in the vendue title were apparent, and that she must be presumed to have purchased with knowledge that the title was defective.

The general rule is, that amendments of records are made with, a saving of the rights of third persons, acquired since the existence of the defect. 4 N. H. Rep. 116, Chamberlain vs. Crane; 6 ditto 459, Bowman vs. Stark.

To apply this rule, however, to all cases of defects in sales of land for taxes, would, in effect, be very nearly denying a right to amend ; as the owner of the land sold would attempt to defeat any amendment, by conveying to some friend, who would bring a suit in his behalf. It would, at least, be necessary to confine the application of the principle to cases where the land had been actually conveyed bona fide.

But instances might exist, where the purchaser, although he might not have found upon the records all that was necessary to make a formal and valid record, might have been well assured, from what lie did find, that all that was necessary had in fact been done.

For instance, in relation to the two first defects in the records in this case—in the return of the warning of the meeting, and in the record of the oath of the collector—although these records are not sufficient in point of law, they lead the mind of any one to the belief that what was requisite was probably done. And in such cases, where the fact appears to be stated, hut not in a formal maimer, there is no reason that he who purchases should not be subjected to the same liability to harm the amendment made, and the record put in form, that his grantor would have been, had he attempted to recover the land.

There are cases, where, although all that is required may not appear of record, it may be left to a jury to presume that all that was required was done. As in Bishop vs. Gone—although the application»of the principle in that case may, perhaps, have been questionable, on account of the transactions having been so recent, that, if the truth would have warranted it, an amendment might have been made. Whether that principle could be applied against a subsequent purchaser, it is not necessary to determine. But where what is necessary, is, although not formally stated, so far set down as to lead to a belief that a correct record might have been made, there seems to be no reason why a purchaser, who has access to the records, should not take it subject to a right to have the record put in form, if the truth will warrant it.

Where, on the other hand, nothing appears upon the record in relation to any particular fact necessary to make mt a title, nor is any thing set down bom which it i- írf mlh to be inferred that the fact existed, a j nhsequent bona fide purchaser ought not to have his title defeated by supplying a record instead of amending a record.

, Upon these principles, if the facts will warrant it, the return in relation to the meeting may be so amended as to show the time when the warrant was posted up, it being stated in the original record to have been fifteen days before the meeting ; and that Francis Chase’s, where it is stated to have been posted, was a public place. So as to the record stating that Thirston, the collector, was “ qualified by Francis Chase, Esq.; ” an amendment may be made, setting forth that the oath, prescribed by law, was administered to him by Francis Chase, a justice of the peace.

So, if the truth will admit of it, the return of the collector, that he “proceeded to open the vendue at one o’clock, P. M.,’’ &c., may be amended, by stating that the sale was closed before six o’clock, P. M.—and to the fact, that it was struck off to Gage, may be added that he was the highest bidder, if such was the fact.

We must first have evidence to show that these amendments may be made with truth ; and, if made, they must be upon such terms as shall appear to be just, when the whole matters are before us.

The objection that the return of the collector is not recorded, but only put on file, cannot avail. N. H. Laws, 565.