Perkins v. Eaton

10 A. 704, 64 N.H. 359

• Court: Supreme Court of New Hampshire
• Decided: June 5, 1887
• Status: Published

Opinion

Smith, J.

Upon the execution of the mortgage, the seizin as well as the title of the demanded premises vested in the demand-ant’s intestate, who acquired and remained in constructive possession of the same until his death, unless the defendant’s occupation assumed an adverse character by some unequivocal act distinctly brought to his knowledge. After the title became vested in the mortgagee, the mortgagor’s possession was that of a tenant at will or at sufferance, or analogous to it; and the mortgagee’s right to recover possession first accrued when the demandant, as his legal representative, by bringing this suit, elected to treat the defendant’s possession as a disseizin. Howard v. Hildreth, 18 N. H. 105; Sheafe v. Gerry, 18 N. H. 245; Chellis v. Stearns, 22 N. H. 312; Furbush v. Goodwin, 29 N. H. 321; Tripe v. Marcy, 39 N. H. 439; Clough v. Rowe, 63 N. H. 562.

The defendant, by pleading nul disseizin, admitted that he was in possession of the demanded premises, claiming a freehold, and denied the demandant’s right to recover any part of the premises. Mills v. Peirce, 2 N. H. 9; Graves v. Amoskeag Mfg. Co., 44 N. H. 462. Under this plea no evidence was admissible except on the question of title. The defendant claims a title acquired by adverse possession. He does not claim under Eastman, the mortgagor.. He went into possession in 1862 as the tenant of S. M. D. Perkins, the owner of the other undivided half of the premises, and lias since paid him rent for Ms half. There is no evidence tending to show that he occupied or claimed Eastman’s undivided half adversely to him or to the demandant’s intestate. Campbell v. Campbell, 13 N. H. 483. The fact that the defendant made some repairs upon the buildings while in their occupation as tenant of one of the owners, is not. standing alone, evidence of an adverse holding against the other owner. The defendant’s possession was the possession of his landlord; and a tenant in common, taking the income and making repairs, is presumed to be in according to his title, unless he claims that his possession is exclusive and an ouster of his co-tenant. Thompson v. Gerrish, 57 N. H. 85.

The demandant’s testimony as to the conversation with Eastman in 1869 was competent to show that his mortgage was not barred by the statute of limitations. Hodgdon v. Shannon, 44 N. H. 572, 576. Whether as against one having no title it was necessary to rebut the presumption of payment arising from the lapse of timéis a question which need not be considered.

The deed of the defendant to S. M. D. Perkins in 1882 may be laid out of the ease as immaterial.

As there was evidence from which the jury might find for the demandant upon both issues, and the defendant did not desire to submit any question of fact to them, the verdict was properly ordered for the demandant.

Exceptions overruled.

Clark, J., did not sit: the others concurred.