Tenney v. Evans

11 N.H. 346

Opinion

Up ham, J.

The only question in this case is, whether the plaintiff offered evidence tending to show a property in himself in the articles attached by the defendant, as the property of David Tenney, the plaintiff’s guardian. These articles consisted of stock and farming utensils, taken from the farm of the plaintiff, which had been carried on for some years by the guardian.

The entry and possession of the guardian, or lord of the infant heir, or, of any other person of the infant’s estate, is the possession of the infant—Co. Lit. 189, a.; 1 Atk. 489, Morgan vs. Morgan; and the growing crops follow the possession, and must be holden as the property of the ward, or heir, unless the contrary appears. Such crops cannot he attached on any presumption ■ that they belong to the guardian, or that he carries on the land at a given rent, or on shares, and therefore has an interest in them. Such facts must be shown affirmatively, to justify an attachment of the crops as the property of the guardian.

If the farm is carried on for the ward, the necessary farming utensils, and stock, should be supplied by him. The rule is the same as in case of the working of factories, or mines, which are the property of the ward; in which cases the repairs of machinery, and the purchase of such new articles as are necessary for the use and improvement of the property, are made at the expense of the ward.

But this evidence of ownership of the ward is merely pri-ma facie, and may be rebutted by other testimony. The defendant maybe able to show such declarations of the guardian, or such management of the property, as will readily satisfy a jury that the whole property belonged to the guardian, and that the relation of guardian was used to effect its fraudulent concealment.

No such evidence was offered in this case. A verdict was taken for the defendant, on the mere ground that, as the land was carried on by the guardian, the stock and personal property used for this purpose was necessarily the property of the guardian, and liable to attachment for his debts. This view of the presumption of law arising on the facts, is erroneous. The ownership of the stock on the farm follows the ownership and possession of the land, prima facie, until the contrary appears, and the possession is that of the ward, and not of the guardian. The plaintiff, therefore, under the facts in evidence, is entitled to recover, until the contrary is shown.

Verdict set aside, and new trial granted.