Rand v. Dodge

17 N.H. 343

• Court: Superior Court of New Hampshire
• Decided: July 15, 1845
• Status: Published

Opinion

Gilchrist, J.

This action was commenced by Philip C. Band, who afterward deceased, and it is now prosecuted by Bobert Band, who is his administrator. The deceased claimed, as the heir of Daniel Band, who died in 1836, having derived his title from John R. Watkinson-, who conveyed to him, in 1823, one undivided half of the land described in the declaration. The entire tract was conveyed to Watkinson in 1809 by the Gallups. A deed was produced from the Johnsons, claiming under the will of their father, to the Gallups, and the will of the elder Johnson was also proved by a register’s copy. As no possession earlier than that of Watkinson was proved, the two conveyances last named were unnecessary as to establishing the title of the demandant, which is founded on possession only.

Exception was taken to the introduction of the will and the deed referred to; but however irrelevant they proved to be to the issue — since the demandant failed to connect himself, through them, with the ordinary source of title, or to prove a seizin in any of the parties from whom those conveyances proceeded — the proof of them appears to have been well enough, as showing that the title that he claimed was not of recent origin, and because he had an undoubted right to take the first necessary steps, and to proceed as far as he was able, in tracing his title to the public grant. It does not appear that any unfair results were obtained by him in so doing, or that the jury were directed to consider the evidence as being any thing but a failure on his part to accomplish the end toward which it tended.

Before entering upon the principal points that have been made in the case, it may be proper to dispose of some exceptions that have been taken to some depositions that have been used. One of these is the deposition of Richard Rand, the taking of which was notified to be on Monday, the 26th day of March. The deposition was taken on the 26th day of March, but that day was not Monday. The day of the month is certain. The day of the week is merely unnecessary description, and may be rejected.

It was the duty of the demandant’s counsel to exhibit, on request, the depositions he intended to use. If he declined, a rule could have been taken to file them. But his refusal to exhibit them, before such a rule, could not preclude their use on the trial.

The other deposition is that of William H. Bussell. The caption did not state with sufficient accuracy the place where the deposition was taken. It appeared to have been taken in the city of New-IIaven, and the caption refers to the notice annexed to it in such a manner as to render it probable that it was taken at the office named in the notice. But this does not appear in the caption with sufficient certainty. The oath administered appears to have been to tell the whole truth and nothing but the truth. The administering the oath in that form would admit of the magistrate’s certifying that the witness swore in the form required by the statute — the import of both forms appearing to be the same. But the magistrate has not so certified, and the caption is, in that respect also defective. It appears by the caption that the defendant was not present; and it might be perhaps a fair inference that he did not object. But such an inference is not a necessary one, and the statute requires the certificate of the magistrate to this point. It is therefore defective in this respect also. The court in which the action is alleged to be pending, and in which the deposition is taken to be used, is described at the court of common pleas, to be holden at Haverhill, in and for the county of Grafton, &c. This is not such a misdescription of the court, perhaps, as could possibly mislead one, but does not describe it with perfect accuracy — it being holden rather for the western judicial district than for the county.

But the caption is in all these particulars capable of being amended, and contains something to amend by. 10 N. H. Rep. 291, Whittier v. Varney; 9 N. H. Rep. 168, Gibson v. Bailey.

The principal questions and difficulties in the case are those which have attended the introduction of evidence to prove the possession of the ancestors of the demand-ant, and the possession of parties from whom they derive their title. Personally, no one of them is proved ever to have been upon the land, and all the acts of ownership on which reliance has been placed have been the acts of Hamlin Hand, who was the agent of the successive owner’s of the demandant’s title, from the year ,1814 to his decease, in 1886, or of his servants or others deriving authority directly from him, to perform the acts which have been set up in evidence of the demandant’s possession.

Hamlin Hand appears but once to have been upon the land in person. This was in 1819, and his acts upon that occasion were of the highest character, as indicating possession and a claim of right. He entered upon that occasion with his servants and assistants, for the purpose of making a survey and plan of the lot, and of an adjoining lot claimed under the same title, and of setting up and marking the boundaries by suitable monuments. The land was at that time, as it would seem, unoccupied by any inhabitant.

An earlier act of a similar kind, and equally decisive as one of possession, and indicative of seizin and ownership, was performed in 1814 through the agency of the Good-wins, who, under a contract with Hamlin Hand, which was in evidence, entered upon the two lots, and cut and delivered at Eand’s mill, one hundred thousand feet of pine timber.

To prove the last named entry to have been made under the direction of Hamlin Hand, and to prove these two entries to have been made by him in subordination to the demandant’s title, and for the use and benefit of the parties who at those several times held that title, most of the evidence was cumulated, which has formed the subject of the numerous exceptions which are presented in the case.

One of these exceptions relates to the evidence which was admitted to prove the written contract under which the Goodwins entered, and cut, carried away and delivered to Hamlin Rand the one hundred thousand feet of tim- ' her that grew upon the two lots. The paper bore the name of the subscribing witness, who was not produced, nor was his absence accounted for by the evidenee. It is ¶, a matter of very obvious remark, that the proof of the execution of that paper was in no 'way connected with the i demandant’s title. He claims nothing under the contract. ; i He does not require to know or to prove its terms, or ? whether it was fulfilled and kept by the several parties ! to it. The question was, whether the entry made by the ' Goodwins to cut and carry away the timber was made either at the request or under the direction of Hamlin Rand. That rule of law which requires a contract attested by a witness, to be in general proved by his testimony, is designed for the safety of the parties to the contract. In executing the paper it is in most instances optional with them to require the attestation of a witness, or to dispense with it; but when they choose that the paper shall be so attested, and in those cases in which the law, from a general policy demanding the safeguard of such solemnity in a certain class of cases, requires it for them, no party to that contract, nor any privy, can claim under it, or u,se it to rebut the claim of the other, without proving it by such witness. Such is the general rule. The reasons are variously stated. 1 Greenl. Ev., sec. 569. But jj when one, not a party or privy to the contract, nor claim- I ing any benefit or exemption from the fulfillment of its I exigencies, or the violation of its terms, has occasion, for J a collateral purpose, to show that such a contract existed, i and that its effect was to establish certain relations be- j tween the parties to it, and to qualify the acts of one or'I both of them, otherwise of a doubtful or opposite charac- f ter and import; when the existence of the writing is of I no consequence or significance, but as part of tbe res gestee, which a stranger seeks to prove and to characterize ■with reference to his own rights, then the reason of the rule entirely fails, and the rule itself has no application. This is shown in that class of cases in which parties have been permitted, for collateral purposes, to prove acts done in writing, without producing the papers themselves, or accounting for their absence. Numerous cases on this head are cited in 3 Cow. and Hill’s Phill. 1209; McFadden v. Kingsbury, 11 Wend. 667; Foster v. Trull, 12 Johns. 456; Tucker v. Welch, 17 Mass. 165.

It is not as a contract that the paper is or can be available to the demandant. It is only as evidence of the relation of master and servant, or principal and agent, and as denoting the character and purposes of the acts of the parties established by other proofs, that the paper has any bearing upon the questions at issue.

We are satisfied that upon this ground it was properly admitted, independently of another, urged in the argument, derived from the antiquity of the paper itself. Greenl. Ev., sec. 580; Phil. Ev. 349; Chelsea Water W. v. Cowper, 1 Esp. N. P. 275.

To prove that the entries by Hamlin Rand and his servants, or others acting under him, were in subordination to the demandant’s title, various declarations, letters, and private entries of Hamlin Rand, were introduced, and exception taken, upon the ground that these were merely inter alios actce, and that the defendant was a sti'anger to them. All these acts, whether written or spoken, were i performed during the period in which there was evidence ■ of his possession of the premises, and are introduced for : the sole purpose of indicating the character of that possession, and to show it to have been under the plaintiff’s title.

The competency of the declarations of a party in possession, that he holds under another, for the purpose of establishing the seizin of that other, came in question in the case of Unde v. Watson, 4 Taunt. 16. The plaintiff proposed to inquire of a witness whether a deceased occupant of the houses in controversy had said of whom he rented them; and it was held that the language which that occupant used while in possession was competent. “Possession,” said Mansfield, C. «J., “is prima facie evidence of seizin in fee-simple. The declaration of the possessor that he is tenant to another, makes most strongly therefore against his own interest, and consequently is admissible.” This case is often referred to. In Cram v. Nicoll, 1 Bing. N.C. 430. Tindall,C. J., says: “ The expressions in question, which fell from a person in possession, and so as to cut down his own title, are clearly admissible.” Nearly the same words were used by Lyndhurst, C. B., in Chambers v. Bernasconi, 1 Cromp. & Jervis 457, although the precise point was not presented by the case; and in Greenl. Ev., sec. 109, it is said to be well settled that declarations in disparagement of the title of the declarant are admissible as original evidence.

Now it is quite obvious that a written declaration cannot have less effect than a spoken one; and whatever effect may attend upon evidence of the latter should in fact be felt in greater force when the hand-writing of the party is produced to attest the deliberateness of the admission, and to impress the mind with the more perfect assurance that the admission was made.

Hence we may conclude that the evidence introduced of the sayings of Hamlin Band, like those testified to by McDuffie at the time he made the survey, and his written words, whether contained in letters to the parties in interest, or entries upon his books, or the receipts which he wrote for others to sign, indicating that in the various acts that he performed in connection with the land he acted not for himself, hut in subordination to the demand-ant’s title, as the agent or the tenant of the party then holding it, ox* in pursuance of a license derived from such party, are all competent evidence to establish a possession under that title, at the times those several acts were done.

Of this nature were the various entries upon the books of Hamlin Rand, in which he charged to those parties the > expenses of the survey, or the taxes paid on the land, the ■ identity of the land appearing from the entry itself. Of I the same nature were the receipts written by him for the 'collectors to sign, in which the land is described as the-land of those whose estate the demandant afterward acquired. Of the same nature, and of additional force upon another ground, are the entries in his books, in which he charges himself, as in favor of those parties, with the avails of the timber cut from the land ; because . such a chai’ge is, for this additional cause, against his interest, rendering him accountable for a sum of money.

The admissibility of entries made against the interest of the party making them at the time, as evidence between other pai’ties, upon the ground of their being against such interest, is established by many cases in which the principle has been discussed and applied. Several are referred to in the treatise of Professor Greenleaf (1 Greenl. Ev., sec. 120), who considers it as established. Among these cases is that of Middleton v. Milton, 10 B. & C. 317, in which there is a full examination of the authorities and a very distinct recognition of the doctrine. It was there applied to the case of a tax-gatherer, who, in his life-time, kept a private book for his own convenience, in which he entered the sums received in the course of his official duties, and the names of the parties who paid them. The book was decided to be evidence, in an action against his sureties, without producing the parties who had made the payments, that he had received those sums. And it is the same, although the book or account in which the entry is made contain an entry of the payment by the party making it, or if the entry is itself the only evidence of the charge, of which it shows the subsequent liquidation. Higham v. Ridgway, 10 East 109; Hoare v. Coryton, 4 Taunt. Rep. 560. In Rowe v. Brenton, 8 Man. & E. 267, Lord Tenterden said, that this objection, if valid, would go to the very root of this species of evidence ; and Littledale, J., said that a man was not likely to charge himself for the purpose of getting a discharge. In Williams v. Geaves, 8 C. & P. 592, the entries in a deceased steward’s book were admitted, though the balance of the account was in his favor. Greenl. Ev., see. 151.

The evidence afforded by the acts of the Goodwins, and the contract between them and Ilamlin Rand, and the entries upon the books of the latter, charging himself with the timber cut from the land in pursuance of that contract, while they establish very clearly the entry of Rand on that occasion to have been in subordination to the demandant’s title, do not clearly indicate whether that entry was, by him, made as the agent of those then claiming it, or under a license from them, to cut 'and account for the timber. Nor is that, in a general view, of any importance. But if the evidence should appear rather to favor the idea of an agency, then the minute which was shown in the hand-writing of Ilamlin Rand, upon a bill of the timber drawn by the Goodwins to the mill as meas ured, assumes the character of an act performed in the regular discharge of that agency, and upon the precise ground of its being such was clearly competent evidence. It was part of a transaction which required such an act to be performed, as the measuring of the logs, and identifying, by a proper entry, the return of number and quantity, to servo as a basis of an account of the agency, afterward to be rendered. Greenl. Ev., secs. 115, 116. There was other evidence that tended more directly to show that he was the general agent of the parties referred to, and there is certainly nothing in the transaction with the Goodwins, of a decisive tendency to the contrary, or which might not have been quite consistent with such a relation.

Some of the entries in the books appear not in the hand-writing of Hamlin Rand, but were made by others. One of these was a witness, who swears that he made certain entries by Rand’s direction, which is of course the same as if the master himself had done it. Other entries derive the same force by the evidence of his ratification of them, furnished by a settlement of the accounts of which they form a part. These entries are subject to no just exception for having been made by a party not produced.

In the accounts kept of the timber taken from the land, and in some other accounts connected with it, the parties are named as “ Watkinson and Rand.” In other memoranda, or writings, the land is described as the land of Watkinson; and it became necessary for the demandant, who claimed the title of Watkinson under the deed of 1828, as to one half of the land, which he, in 1809, derived from the Gallups, to explain and give in evidence certain facts, which should show that Hamlin Rand, in accounting with Watkinson & Rand, did really recognize this.title of Watkinson, and that all his acts proved were really under this title and no other, whether he, as in some instances, treated the land and its proceeds as the property of Watkinson & Rand, or, as in others, treated them as Watkinson’s.

For this purpose it was not necessary to show whose the title really was, for the case leads us to suppose that that might have been difficult. It was sufficient that there was an Understanding between Watkinson & Rand that they were jointly interested in the property. The plaintiff accordingly introduced the declarations of the parties themselves, that Daniel Rand claimed to be jointly interested with Watkinson in the purchase, and that Watkinson admitted that he was so interested. It is said that such evidence is not sufficient to establish, for the benefit of Daniel Rand, any such interest in real estate. If not, it is sufficient to explain how the accounting by Hamlin Rand with Watkinson & Rand amounted to a recognition of the Watkinson title ; and that was all that it was required for. We have no doubt that it was properly admitted for that purpose, whatever weight it may or ought to have had.

The competency of William Rand to testify is not affected by any evidence which the case presents. Neither is that of James Allen, who appears to have in his hands enough to indemnify him for any advances which he may have made, or become liable to make.

The evidence that was admitted to prove the signatures of certain receipts for taxes, was, as to some of those signatures, incompetent, the collectors not having been shown to be deceased. Rut the evidence was itself wholly irrelevant, and not in the least affecting the merits of the case either way. The actual payment of the taxes was not in issue; the receipts themselves were pertinent only by reason of the incidental recognition they contained, under the hand of Hamlin Rand, of the demandant’s title to the land.

A like remark is applicable to the testimony of Ezra Sanborn, which did not reach the matter in issue. He did not know whether the cutting of timber, which he saw, was upon the lot in dispute or upon another.

The admission of such impertinent evidence was irregular. Its tendency in general is to perplex the jurors with false and immaterial issues, and is, by an unquestioned rule of law, excluded. But its admission does not, in all cases, and of necessity, avoid the verdict. Unless it shall appear to have had some undue influence, by reason of the direction of the court assigning to it importance, or for other cause in producing the verdict, there seems no just ground for setting aside the verdict on account of its having' been admitted. And so are the' authorities. Ellis v. Short, 21 Pick. 142; Commonwealth v. Bosworth, 22 id. 397; Buddington v. Shearer, 22 id. 427; Brice v. Shepherd, 9 id. 176; Thompson v. Lathrop, 21 id. 336.

The last question relates to the claim set up by the tenant for betterments, which arises under the statute of June 19, 1805 — N. H. Laws 75 — where the tenant holds the land “ by virtue of a supposed legal title under a bond fide purchase, and which the occupant, or person under whom he claims, has'been in the actual peaceable possession and improvement of, for more than six years,” &c.

The occupancy for the requisite period was proved. The evidence adduced by the tenant himself was, that about twenty years previously he had declared that this was a lot to which no one had a legal title; that he had moved upon it to make himself a home ; that Rand pretended to have a claim to it, but that he did not think that Rand or any one else had any legal title to it. He also proved that he had declared that he had found a lot to which no one had a better title than he had. The case presents no evidence that the defendant ever purchased the land of any one, in any sense in which that word is commonly used. His own declarations negative the idea of any claim of title. He said that nobody owned the land. It seems, therefore, very clear that he has not brought himself within the provision of the statute.

It would seem, therefore, that the plaintiff is entitled to judgment upon the verdict, but for the exceptionable caption to Russell’s deposition. But this, as has been said, may be amended. If that is done, and the caption returned to the files, there may then be

Judgment on the verdict.