Olmstead v. Niles

7 N.H. 522

• Court: Superior Court of New Hampshire
• Decided: July 15, 1835
• Status: Published

Opinion

Parker,!.

The first question in this case is, whether any thing passed to the plaintiff, by the contract of Austin Ladd; for if that contract was wholly void, or passed no interest, the plaintiff cannot maintain this action.

It is not disputed that Ladd was, on the 23d of September, 1826, the sole.owner of lot numbered 13 ; and on that day he bargained and sold to the plaintiff all the pine timber upon that lot, and agreed that the plaintiff might have twenty-five years in which to get it off. This contract was reduced to writing, and signed by Ladd, but was not under Seal.

The statute of February 10, 1791, which was in force at the date of this writing, provided that all leases, estates, interest of freeholds, or term of years, or any uncertain interest of, in, or out of any messuages, lands, &c., made and created by livery of seizin only, or by parole, and not in writing signed by the parties so making or creating the same, &c., should have the force and effect of leases or estates at will only ; and that no leases, estates, or interest, either of freehold, or term of years, or any uncertain interest of, in, or out of any messuages, lands, &c., should be assigned, granted, or surrendered, unless by deed or note in writing, signed by the party so assigning,'granting, or surrendering, &c,, or by act and operation of law.

The same statute enacted, that all deeds or other conveyances of any lands, tenements, or hereditaments, lying in this state, signed and sealed by the party granting the same, having good and lawful authority thereunto, and signed by two or more witnesses, and acknowledged and recorded. should be valid to pass the same, without any other act or ceremony in law whatever; and that no deed of bargain and sale, &c., or any lease for more than seven years, should be good and effectual against any other person but the grantor or grantors, and their heirs only, unless the deed was acknowledged and recorded in the manner there prescribed.

The instrument executed by Ladd is in its terms a present sale of all the timber upon lot 13, and gives the plaintiff twenty-five years in which to get the timber off. It purports, therefore, to be a transfer of an interest in the land, as the plaintiff was to have the timber remain and grow upon the land, if he pleased, and take it off at such period within the twenty-five years as he should see fit. Putney vs. Day, 6 N. H. Rep. 430; 6 East 602, Crosby vs. Wadsworth; 2 Stark. Ev. 598; 11 Mass. 533, Cook vs. Stearns; 2 Mau. Sel. 208, Warwick vs. Bruce.

But there is nothing in the provisions of the statute above cited which required a deed in order to transfer such interest. It was not necessary at common law, nor by the statute of frauds. 3 N. H. Rep. 260, French vs. French; 4 Cruise's Dig. 172; Roberts on Frauds, 269, 270; 2 Inst. 675; Dyer 229; 2 Black. Com. 338. And the provisions of the statute of 1791, first cited, directly imply that for the conveyance of such an interest as the one now in question, a note in writing, signed by the party granting it, is sufficient, and that a deed is not necessary. Rob. on Frauds, 246.

Whether the statute of 1829, which repealed the act of 1791, has made any alteration in this respect, is a question which does not arise in this case.

As between Ladd and the plaintiff, then, the instrument was sufficient to pass the timber to the plaintiff, in the manner there specified, nor is there any evidence that Ladd ever attempted to avoid it.

But it is farther objected, that the plaintiff cannot hold the timber against the defendant, because he had no notice of the sale, and the writing was not recorded until after the defendant took a conveyance of the land.

Had Ladd, after the sale to the plaintiff, conveyed the land to the defendant without any reservation, and without any notice or record ; or had Watson levied on the fee, as if unincumbered, without such notice, there would have been ground for this exception. 5 Green. 381, The Gardiner Man. Co. vs. Heald; 5 Binn. 131, Lessee of Billington vs. Welsh.

But the defendant does not so derive his title. Watson, who levied upon the land as the property of Ladd, seems to have had express notice of this sale to the plaintiff, and made his extent, subject to the right of the plaintiff to take the timber. Of course nothing now claimed by the plaintiff passed to Watson, and he could not have objected that the writing executed by Ladd to the plaintiff was not recorded. The plaintiff could have held the timber as against him, if taken within the time.

Watson, then, never having had a right to the timber, could convey no right to the defendant ; and although his deed purports to convey the absolute title to the land, had the defendant examined Watson’s title, he would have seen that Watson never had such aright. This is not, therefore, like a case where a man takes a deed of one who once had a title, which he has conveyed or incumbered, but of which conveyance or incumbrance no notice appears for want of a record, and who, therefore, by the negligence of his grantee, is enabled still to hold himself out as the owner, and thus deceive third persons ; but it is like a case where one who never had any evidence or pretence of title, conveys land to another, in which case it is not competent for the grantee to hold the land merely because the true owner had not put his deed upon record.

There was no need of a record of the plaintiff’s right for the protection of the defendant. If the defendant had examined the title of his grantor he could not have been deceived. The absolute title which he sets up was not derived from Ladd, who had good right to convey. The defendant does not show any title to the timber from him. So far as the plaintiff’s claim extends, no conveyance, by levy. or Otherwise, e ver purported to pass any thing from Ladd to the defendant, and the defendant, therefore, cannot'be considered a, subsequent purchaser. As; respects the matter now in controversy, he is a .stranger to the title under which the plaintiff: claims, and is not entitled to .except to the want of a record. 6 N. H. Rep. 250, Montgomery vs. Dorion; 11 Pick. R. 193, Tyler vs. Hammond.

Judgment for the plaintiff.