Jewell v. Porter & Rolfe

31 N.H. 34

• Court: Superior Court of New Hampshire
• Decided: July 15, 1855
• Status: Published

Opinion

Eastman, J.

The deeds of Samuel Barnard, senior, to Tucke, and from Tucke to Elizabeth Barnard, dated January 1,1811, gave a good title to Elizabeth Barnard.

A conveyance cannot be made by the husband directly to the wife. Martin v. Martin, 1 Greenl. Rep. 394; 2 Kent’s Com. 129. But it may be done through the intervention of third persons; and the deed, if recorded, will pass the premises, if there are no creditors to interfere.

A voluntary conveyance is good against an heir-at-law. Kimball v. Eaton, 8 N. H. Rep. 391. It is good against all but creditors and purchasers without notice. In Marshall v. Pierce, 12 N. H. Rep. 131, Gilchrist, J., says that a conveyance made to the wife by a third person, upon a consideration paid by the husband, can be avoided by the creditors of the husband. Although, in that case, the point here presented was not raised, yet a fair deduction from the authority would seem to show that such a conveyance cannot be avoided by others who have notice.

No creditors of Samuel Barnard interfere in this case; and the recording of the deeds, which an inspection of them shows to have been duly made, was notice to purchasers. It is unnecessary to cite authorities to sustain this position. An attachment or purchase made, with the knowledge of the existence of a prior deed, even unrecorded, secures no rights against the holder of such deed. Jackson v. Page, 4 Wend. 585; Connecticut v. Bradish, 14 Mass. Rep. 300; Jackson v. Burgot, 10 Johns. 457; Butler v. Stevens, 26 Maine Rep. 484; Brown v. Manter, 2 Foster’s Rep. 471; Montgomery v. Dorion, 6 N. H. Rep. 250; Odiorne v. Mason, 9 N. H. Rep. 24.

The title of Elizabeth Barnard was therefore good, and her children would inherit the estate from her, after her decease, subject to any life estate which their father might have in the premises.

Mrs. Barnard left three children, Mary, Samuel, jr., and Harrison S. This petitioner has the title of two of them, acquired by conveyances made after the death of both their .parents; and holding, as we do, that the deeds of 1811 were effectual to pass the estate to Mrs. Barnard, the proceedings in the probate court, whatever may have been their character, and the conveyance under them could not give to Samuel Barnard, jr., any greater interest in the estate than that which Samuel Barnard, sen., had in the premises at the time the license was granted. It is therefore unnecessary to inquire particularly into the probate proceedings. A purchaser under them, and claiming title through them alone, could not acquire any greater interest in the land than that which belonged to the ward, which was only a life estate.

At the time Barnard conveyed to Brown, in 1836, he had nothing in the premises, in possession, except the life estate of his father. As heir of his mother, however, he would be owner of one undivided third, on the death of his father. If the deed which he gave to Brown was a warrantee deed, with full covenants, as we infer from the case was the fact, the rights which he might acquire in the premises after 1836, would enure to Brown’s benefit, and to the benefit of those claiming under him. Wark v. Willard, 13 N. H. Rep. 389; Kimball v. Blaisdell, 3 N. H. Rep. 533; Bell v. Twilight, 6 Foster’s Rep. 406.

Porter & Rolfe are in possession, and their title is subject to that of the mortgages of Brown; but by paying those mortgages, they acquire the whole title of Brown, which would be that of Samuel Barnard, jr., and would be one-third of the premises. Samuel Barnard, sen., being dead, and there being no suggestion that the' bond of Brown was not fully kept, Porter & Rolfe, therefore, held an undivided interest in the estate with the petitioner, and were properly made parties to this proceeding. Rev. Stat., ch. 206.

But we need not pursue the investigation further. We suppose, from the case, that the object of the agreed statement was to obtain the opinion of the court upon the question of the petitioner’s rights. And as to those rights, we entertain no doubt that he has title to two undivided third parts; and that a committee should be appointed to make partition accordingly.