Titus v. Ash

24 N.H. 319

• Court: Superior Court of New Hampshire
• Decided: December 15, 1851
• Status: Published

Opinion

Perley, J.

The declaration alleged that the wife of Titus had an interest in the estate of David Ash, and that the promise declared on was made in consideration that the plaintiffs would make to the defendant an acquittance of all the right they had in the estate, and that the plaintiffs made an acquittance accordingly of all their right, to the defendant. The defendant objects that there is a variance, because the case shews that neither of the. plaintiffs had any interest in the estate of David Ash.

Taking it to be the fact, that neither of the plaintiffs had any interest in the estate, the consideration alleged for the defendant’s undertaking, is the release, and not the conveyance of any estate, and that consideration is sufficient. The statement that the plaintiffs had an interest, is the mere recital of a fact not material to the case, and no part of the consideration. The declaration is complete without it. It may be wholly rejected, and leave the agreement correctly and fully stated. There is no allegation that the plaintiffs undertook, as part of the consideration, to convey any estate or interest. The execution and delivery of the acquittance constituted the whole consideration.

The general rule is stated in Bristow v. Wright, Doug. 667. Where the declaration contains impertinent matter foreign to the case, that will be rejected by the court, and need not be proved; where an averment may be wholly omitted and leave the declaration perfect, and of the same legal effect, it need not be proved. Peppin v. Solomon, 5 Term Rep. 496; Winn v. White, 2 Bl. Rep. 840, is very much in point. The plaintiff in that case declared in assumpsit for neglect to keep premises in repair, and alleged that when he demised he was seized in fee. It appeared on trial that he was seized in tail, but that the defendant entered, and held under him, and held no variance, because the estate of the lessor was immaterial. So in the present case, by the agreement declared on it was immaterial what estate the plaintiffs had, or whether they had any.

The evidence, therefore, sufficiently maintains the declaration, even though it should be held that the case did not shew Hannah Titus, the plaintiff, to have had an interest in the estate of David Ash, her father. The court have not found it necessary to determine that question. It would, perhaps, be difficult to find in the case the legal ground on which she parted with her right to a share in her father’s estate.

In his lifetime, when, of course, she had no legal interest, she joined in a deed acquitting and releasing to a third person her expectancy in her father’s estate, and covenanted, together with her husband, that she would not claim anything in his estate. As this deed was made with the knowledge and approbation of David Ash, Titus, the husband, might be estopped by his covenant to set up any claim after the death of David Ash. Quarles v. Quarles, 4 Mass. 680; Kenney v. Tucker, 8 Mass. 143. But the wife is not bound by her covenant in a deed of conveyance, either as a contract or by way of estoppel. Wadleigh v. Glines, 6 N. H. Rep. 17; Jackson v. Vanderheyden, 17 Johns. Rep. 67; Carpenter v. Schemerhorn, 2 Barb. Ch. Rep. 314; Hardin v. Smith, 7 B. Mon. 390; Aldridge v. Burleson, 3 Blackf. 201.

It is said in Fowler v. Shearer, 7 Mass. 14, and in Colcord v. Swain, 7 Mass. 291, that the wife is not bound by her covenants in the joint deed of herself and husband, “ further than they may operate by way of estoppelbut it was not decided in either of those cases that they could operate by way of estoppel, and perhaps nothing more was intended by the remark, than that, her covenant, if it were necessary to the conveyance, might operate by way of estoppel on the estate she then had, as was sometimes the case where a fine was levied of lands held by the husband in right of his wife. In such case, the warranty inserted in the concord was by the husband and wife, and bound her so far as to give the fictitious conveyance operation upon her estate. Cruise’s Digest, Title 35, chapter 9, § 50, and chapter 10, § 11.

The deed of the husband and wife, made in the lifetime of her father, would not, either as a direct conveyance, or by way of estoppel, prevent’the wife from claiming her share in her father’s estate, upon the death of her husband.

There are also serious difficulties in the way of setting up the transaction stated in the case as an advancement. In the first place, it does not fall within any of the enumerated cases, which by the statute then in force were to be considered as advancements. Statute of 1822, Ed. of 1830, p. 332.

It would probably be held that no advancements could be allowed except such as were specifically provided for by that statute. Such is the construction which has been put upon a similar statute in Massachusetts. Barton v. Rice, 22 Pick, 508; and our Revised Statutes are express, that no advancement shall be allowed unless it is proved in one of the ways therein prescribed.

Then again, had the court of common pleas any jurisdiction under our statute to decide the question whether there was an advancement, and to allow it against the child’s share in her father’s estate ? The jurisdiction is given to the judge of probate to divide and distribute the estates of intestates. The statute of 1822 provides, that in the settlement of such estates advancements may be allowed by the court of probate, either in the partition of the real, or in the distribution of the personal estate. N. H. Laws, ed. of 1830, p. 353. The judge of probate is by the statute to make distribution of the estate; the estate is to be settled in his court. But the estate will not be distributed and settled, unless advancements are taken into the account. The statute may well be held to mean that the judge in the settlement of the estate shall and must allow for advancements, and that he may do this either in the partition of the real, or in the distribution of the personal estate. The provision of the Revised Statutes is unequivocal that the judge of probate shall settle and allow the advancements. Chap. 166, § 8.

Where a party, having legal capacity to bind himself, has acknowledged by deed an advancement of his full share, and covenanted that he would make no further claim, perhaps this prospective adjustment may supersede the necessity of an inquiry in the probate court, and the deed may operate as an estoppel in a suit at law. But here the wife had no power to bind herself in that way; and as to her, notwithstanding her deed, the court would be obliged to settle, first, whether there was an advancement in fact, and then, whether in amount and value it was equal to her whole share in the estate. No such inquiries were made in this case,- and it may well be doubted whether the court of common pleas had any jurisdiction to entertain these questions. The court of probate have a clear jurisdiction, and it must be regarded as a wide departure from the general policy of our statutes on this subject, to allow another tribunal to interfere in this or any other matter that belongs directly to the distribution and settlement of intestate estates.

We are aware of a case in Pennsylvania in which it has been held that a question of advancement may be, but must not of necessity be, settled in the orphans’ court. Earnest v. Earnest, 5 Rawle 213.

If the question of advancement could only be determined in the probate court, on settlement of the estate, it would seem that the lands in the meantime would descend to all the children, and until partition they would all have an estate and interest, liable to be defeated in case any one should be found to have received his full share by advancement. The wife would then have an interest, at least in the land; for though the husband might be estopped to make any claim by his covenant, the wife upon his death, in her lifetime, might assert her right.

These suggestions are meant to guard against the inference that the court agree in the defendant’s position that the wife had no interest in her father’s estate. That point is left undetermined.

It is objected that this action cannot be maintained by the husband and wife, but that it should have been brought by the husband alone.

It is to be remarked that if the wife had an interest in the estate of her father, there is no variance affecting this question between the declaration and the evidence. The plaintiffs made out this part of their case as they stated it, and if on the case stated in the declaration the wife ought not to have been joined, the objection should have been made on demurrer, or on a motion in arrest of the judgment; but this exception was taken on trial, and there is no motion in arrest of judgment. We are however of opinion that the wife was properly joined, whether she had or had not an interest in her father’s estate.

The husband — this promise to him and his wife having been made during coverture — might have sued alone. But where an express undertaking is made to the husband and wife, on a consideration moving partly from the husband and partly from the wife, the wife may join with the husband in the suit. Com. Dig., Baron & Feme (X.); Com. Dig., Baron & Feme (V.) note; Nurse v. Wills, 4 B. & Ad. 739; Wills v. Nurse, S. C. in Error, 1 A. & E. 65; Smith v. Ransom, 21 Wend. 202. Where the consideration moves partly from the husband and partly from the wife, and the promise is not express but implied, the law would seem to be otherwise. The Dippers of Tunbridge Wells, 2 Wilson 424. In this case the release of the claim which the husband and wife had to her father’s estate, was a sufficient consideration for the promise, though they had in fact no interest. Perkins v. Bumford, 3 N. H. Rep. 522. This consideration moved partly from the husband and partly from the wife; for the husband would be prevented by the deed, from setting up any claim during his life, and the wife, after his death, if she survived him. This is the state of the case, independent of the fact that whatever color of title the plaintiffs appear to have had, was in right of the wife as heir and next of kin to her father.

The court properly left it for the jury to find, on the contradictory evidence, whether the new promise was absolute or conditional; and if they found it to be conditional, the instruction that the plaintiff could not recover unless the condition were performed, was also correct.

A promise and acknowledgment to a third person are clearly sufficient to take the case out of the statute and avoid the plea. There was evidence that the original promise of the defendant was to pay seventy-five dollars, not in money on demand, according to the allegation of the declaration, but in such things and at such times as might be convenient to him. The court declined to instruct the jury that if the original promise was to pay, not in money, but as above stated, the plaintiff could not recover, but instructed them that if the new promise was to pay immediately and in money, the declaration was maintained.

The declaration is, and according to the settled practice, ought to be, on the original and not on the new promise. Leaper v. Tatton, 16 East 420; Thornton v. Illingworth, 2 B. & C. 824; Upton v. Else, 12 Moore 303; Little v. Blunt, 9 Pick. 488. Perhaps a declaration might be framed on the new promise; but in that case the original liability must be alleged as the consideration for the new undertaking. Danforth v. Culver, 11 Johns. 166. When a new promise is replied to avoid a plea of the statute, it is not necessary that the new promise should agree with that laid in the declaration, and with the original undertaking. If the original promise was absolute, and declared on as such, and the new promise is conditional, provided the condition is shewn to have been performed, the issue on the part of the plaintiff is maintained. So it is not necessary that the new promise should be made to the plaintiff in a way to make a new contract with him, such as is required to rebut a plea of infancy or bankruptcy. The substance of the replication would seem to be that the defendant has waived the statutory bar which he pleads to the action. Buswell v. Roby, 3 N. H. Rep. 467; Betton v. Cutts, 11 N. H. Rep. 177; Yea v. Fouraker, 2 Burrows 1099; Thornton v. Illingworth, 2 B. & C. 824; Angell on Limitations, 253, 254. In this case, if the defendant had pleaded the general issue, the evidence would have been a manifest variance from the declaration and it is quite impossible to hold .that the question whether evidence supports the declaration can depend on the answer which the defendant makes to it. The new promise, If it is to he regarded in the light of an undertaking or contract, is made in consideration of the original promise stated in the declaration, and that original promise must be correctly, stated, even if it could be looked upon merely as the consideration of the premise on which the plaintiff relies..

The evidence of the original promise stated in the ease must be held to he a variance from the declaration.

Evidence of the nature of the claim which the. witness made against the estate of Parid Ash, was properly rejected. It might be shewn that the witness had a dispute with the defendant, but the particulars of his claim against the estate which the defendant represented, were not competent evidence. Harris v. Tippet, 2 Camp. 638. Evidence that the character of a witness was not impeached on another trial, was incompetent, but it does not appear how it could have been material; and in such cases the court, at least in civil causes, do not set aside verdicts unless some reason appears for supposing that the evidence was prejudicial to the party against whom it was given. Jewett v. Davis, 6 N. H. Rep. 80; Hamblett v. Hamblett, 6 N. H. Rep. 883.

There is no valid objection to the testimony of Cummings. The defendant had introduced evidence to impeach the general reputation of the witness for truth. It might be important for the defendant to shew that his bad reputation was owing principally to attacks made on his character upon occasion of his testifying at a particular trial. Such evidence might have a tendency to satisfy the jury that the reports unfavorable to the character of the witness had their origin more or less in the feelings and prejudices caused by that trial; and, if so, less weight might be given to the impeaching testimony. In this view of the evidence, Cummings having testified that, from his general reputation, he would not believe the witness under oath, might be asked what his testimony would be, laying aside the impressions which he received at the trial mentioned. The State v. Howard, 9 N. H. Rep. 485.

A quarrel between a witness and the party against whom he testifies, may be proved to discredit the witness. But the quarrel in such case is not the substantial fact; it is no more than a circumstance tending to shew prejudice and ill will in the witness, such as would detract from the weight of his testimony. The merits and the nature of the dispute between the witness and the party are not material. The court will not inquire which side was in the wrong. But the degree of violence in the quarrel is manifestly material to the point in question. Was it a slight and accidental difference on some trifling subject, such as would be likely to leave behind no trace of ill will or prejudice ? or a serious and inveterate feud, such as would perpetuate a grudge in the mind of the witness against the party ? If the witness admits a misunderstanding, but denies the circumstances which shew that it was serious, he denies the substantial fact attempted to be proved. If he wholly denies the quarrel, he may be contradicted; and if he denies all that makes the quaml material, we think he may be contradicted on the same principle. Harris v. Tippet, 2 Camp. 638; Atwood v. Walton, 7 Conn. 66; Pierce v. Gilson, 9 Vermont 216; Rixey v. Bayse, 4 Leigh’s Rep. 333.

When it is proposed to prove a fact which shews the witness to stand in a relation to the parties that ought to detract from his credit, it would seem that in England the witness must first be inquired of as to the fact, as in the case where declarations of the witness are offered to be proved to contradict his testimony. The Queen’s Case, 2 Bro. & Bing. 284. But in Yermont, where the practice requires the inquiry to be made of the witness, if he is to be contradicted by proof of his declarations, it is not necessary that the witness should be first questioned on the subject, when evidence is to be given of a dispute which he has had with one of the parties. Downer v. Dana, 19 Vermont 338.

In this State, where it is proposed to give declarations of the witness in evidence to contradict him, there is no rule of practice which requires that he should be first asked whether he made such declarations. If he has explanations to make, he can be called again. The question is frequently put to the witness as matter of policy, in order that he may be committed by a statement in advance; and has perhaps sometimes been supposed to be necessary. We are satisfied, however, that there is not any peremptory rule that requires it. Our practice on this point agrees with that which is understood to prevail in Massachusetts and in Maine. Tucker v. Welch, 17 Mass. 160; Ware v. Ware, 8 Greenl. Rep. 42.