Wallace v. Goodall

18 N.H. 439

• Court: Superior Court of New Hampshire
• Decided: December 15, 1846
• Status: Published

Opinion

Gilchrist, J.

This is an action of trespass quare clausum. Joshua B. Dodge, on the 24th of January, 1825, conveyed lot No. 61, in Bethlehem, to Jonathan P. Randlett, and on the same day Randlett mortgaged the samé land to Dodge, to secure the payment of four promissory notes, amounting to $138.15, and interest.

After this conveyance it is plain that Dodge was a mortgagee only.

It does not appear from the case who at this time was in the possession of the lot, or whether any one was in possession of it. Randlett, at some time, went into possession, for we find, from the testimony of Reuben Phillips, that Randlett lived on it several years, and until about a'year before James Handy bought it, which would extend Randlett’s possession into the year 1834. But it appears that after Randlett left the place, and before Handy bought it, whose purchase was on the 7th day of September, 1835, Simeon Dodge, acting as agent of the mortgagee, Joshua B. Dodge, went upon the land, declaring that he took possession of it for his principal. After having done this he left the place.

This was a sufficient possession by the mortgagee for the purposes wffiich were afterward executed. "Whatever a continued actual occupation would have given him, he acquired by this act of his agent, in taking a formal possession ; for the mere act of leaving the land immediately upon the consummation of this formal act, afforded no ground to presume that he intended to abandon the possession; and as no one disputed his possession, or was present to enter as soon as the absence of the agent would admit, the mere act of withdrawing from the land was not, in any just sense, an abandonment of the possession, as has been suggested in the argument.

lie was not bound, in order to be enabled to transfer a possession, to retain an actual pedis possessionem, for the possession that had been acquired by the entry continued in contemplation of law until there was an ouster, by force of some hostile entry.

Matters being in this condition, Hodge, the mortgagee, on the 7th of September, 1835, conveyed the land to James Handy. It does not appear whether the debt secured by the mortgage was transferred to Handy or not. Conceding that it was not, and that, as against the mortgager, the deed was wholly ineffectual as it regarded the title to the land — as was held in Dearborn v. Taylor, ante 153, upon the authority of Ellison v. Daniels, 11 N. H. Rep. 274, and the other cases cited — it must be borne in mind that Hodge had acquired possession of the land, and that this passed by his deed. It was held, in Bedell v. Loomis, 11 N. H. Rep. 9, that, where there is no title whatever, nor even color of title in the grantor, but there is possession, this will pass by the deed, and afford, with the covenants of warranty, a sufficient consideration for a note given for the price. And it may be said of the deed of Hodge, as was said of the deed in the case referred to, that it is sufficient to pass a right to occupy so much land as the grantor was in possession of.

It was accordingly held, in Smith v. Smith, 15 N. H. Rep. 55, that a mortgagee in actual possession might, without any reference to the purposes for which it was taken, and without regard to the question whether anything more than mere possession would pass, convey that possession by deed to another, and that the grantee could hold it against all persons who should not show a better title, and might bring or defend actions in maintenance of that possession.

There can be no doubt, therefore, that the deed, being that of a party in possession, conveyed seizin of the land sufficient to prevail against all parties not showing a better title. Straw v. Jones, 9 N. H. Rep. 400.

The consideration of' the deed from Dodge to Handy was the sum of $200, for which, at the time, Handy gave his promissory note to Dodge, signed by Reuben Phillips as his surety. For the purpose of indemnifying Phillips against this liability, and to save him harmless, Handy mortgaged the land to him. One half the note was payable on the first day of February, 1836, and was paid by Phillips soon after it became due. He after^war dsoldhis claim, as he says, to the plaintiff for $100, delivered to him‘the note, and assigned the mortgage, and the plaintiff then went into possession, as Dodge had done.

Now after Phillips had paid the note, or a part of it, he had a right to hold the land for his security, until he should be reimbursed the money he had paid. He had a claim against the principal, for the payment of which the land was pledged. This claim was transferable, and his interest in the land passed as incident to the claim when transferred. His right to hold the land, and all his interest in the land, depended- on the existence of the mortgage. It was his title to the land, and it is the plaintiff’s title also, without which he cannot maintain this action. That the plaintiff was the assignee of a debt, and that he was the holder also of a paper duly executed and assuming to assign to him a mortgage, when there was no proof that such a mortgage ever existed, is certainly no evidence of title to land. The party must prove the execution of the deed on which he relies as the evidence of his title; Pollard v. Melvin, 10 N. H. Rep. 554; and if, as in this case, he rely upon the land passing as an incident to the debt assigned, he must still prove that the land was an incident, which can be done only by proof of the mortgage. The proof of the assignment amounts to nothing, for it must still appear that there was a mortgage, in order to give effect to the assignment, as conveying an interest in the land.

If the proof of the execution of the mortgage might bo dispensed with, a fraudulent or forged deed would be as effectual, for the purposes of the assignee, as any other; for he need only prove the debt, and that he had an instrument made and delivered to him, purporting to be an assignment of a mortgage, and his title would be complete.

Such a mortgage is not proved by the mere production of an office copy. Such copies do not afford evidence of the execution of the deed recorded, except only after proof of the deed under which the party claims the title, whether that deed be made to himself, or to one to whose title he succeeds Avithout a conveyance.

As the evidence of the execution of the mortgage Avas not required at the trial, the ruling of the court was erroneous, and the verdict must, for this cause, if for no other, bo set aside.

But as there are other questions raised in the case, it may be for the interest of the parties at another trial that they should be considered and settled.

The matter of fact in dispute between the parties wa3 the situation of the boundary line of lots No. 61 and No. 56. Evidence was offered by the defendant to prove where it Avas lot No. 57 adjoins No. 56, and opposite to it is No. 60, adjoining No. 61. Brackett and Gile claimed one half of No. 57, aud about fourteen years ago Gilman, the defendant’s witness, sold No. 60 to Aaron Brackett. Gilman AA'ent Avith those parties to settle the line betAveen those íavo lots so claimed by them respectively, and he states that, beginning at the S. W. corner of No. 60, they ran a lino to the large birch to which the defendants claimed. But Brackett said that this Avould not give him “ his quantity of land,” and they concluded that the marks Avere not old enough, and they then ran to the small birch, to which the plaintiff claims. They thought the marks on this older than those on the other, and finally agreed on the spruce as a corner.

This testimony of Gilman is exceptionable on three grounds.

1. Whatever might have been the opinion of Brackett and Gile, as to the comparative ages of the marks on the large and the small birches, the opinion, as such, would not be evidence. It does not appear that they were surveyors, and therefore experts, whose opinions on subjects falling within the range of their peculiar observation and knowledge are regarded as evidence. Davis v. Mason, 4 Pick. 156.

2. Gilman’s testimony, so far as it relates to Brackett’s declarations, is merely hearsay, tie only states what he heard Brackett and others say about the marks, and the quantity of land that the proposed boundary would give him, and thus it is incompetent.

3. Whatever monument Brackett and Gile might have agreed on as the boundary between their lots, cannot affect the plaintiff. ' It was as to him res inter alios. Owners of adjoining lands may settle their lines by parol, and their agreement, when executed, is conclusive upon them. Sawyer v. Fellows, 6 N. H. Rep. 107; Gray v. Berry, 9 N. H. Rep. 473; Prescott v. Hawkins, 12 N. H. Rep. 27.

Even if it were proved that such an agreement was the l’esult of an examination of the lines, and that the true corner was ascertained to their satisfaction, it would not bind other parties claiming different tracts. It is unreasonable that the opinion formed by two parties, upon evidence not exclusively accessible to themselves, and on a subject upon which they have apparently no means, peculiar to themselves, of forming a correct opinion, should have any influence to conclude others, through the mere accident of their being neighboring proprietors. Indeed, the effect attributed to such an opinion would not be limited to adjoining owners, but would extend to all whose lots might abut upon the same line, and might, from the accident of having been the earliest opinion formed, be conclusive in cases in which clear evidence did not exist to defeat it. Such evidence ought not to be admitted. Still less vrould it be admissible where, as in this case, the agreement upon a certain monument might have been the result of a compromise of disputed claims to land, and might have been made, not because the monument appeared to be the true one, but because nothing better could be done.

Another question is, whether the declarations of Snow were admissible. It appeal’s that, twenty years ago, Reuben Phillips went with Snow, who was not living at the time of the trial, upon the land, and Snow said he thought the large birch was not an original corner, because the marks on it were not old enough.

It has been settled, in the case of Smith v. Powers, 15 N. H. Rep. 546, that the declarations of a person since deceased, as to the boundaries of lands, where, from his situation, he had the means of knowing where the boundaries were, are competent evidence. The case of Prescott v. Hawldns, decided at the July term, 1845, also in this county, is to the same point. Evidence of this character is necessary on the ground of necessity, because, ordinarily, but few persons are so situated as to possess the means of knowledge. It is also competent, as partaking of the nature of traditionary evidence, and it is, when coming from disinterested persons, intrinsically probable. But no principles on which it is admitted would comprehend the declaration of a deceased expert. They are not necessary, because other experts may be called whose testimony is equally valuable, and worthy of being depended upon. Nor are such declarations traditionary in their character. We are not aware that any decisions have gone so far as to admit them, and are of the opinion that they ought not to be admitted. The ruling of the court was, therefore, in this particular erroneous.

' The plaintiff offered evidence tending to prove, as he alleged, an admission by Stephen P. Webster, since deceased, that the small birch was the corner. Webster, it appears, was the defendant’s grantor, and Philip C. Wilkins testified that he “ went upon the land with Webster, at his request, to show him where Wilkins had run the lines; Webster saying that he had talked of selling the lot, and wanted to see the bounds. He said he knew that the hemlock tree on the northeast corner was a corner. The witness showed him the small birch, and went also to the spruce and to the hemlock. He made no objection to the small birch as the corner. He said he was pretty well acquainted with the lines in that town ; examined the witness’s field book, and the witness understood that he owned much land in that section of the country.”

The declarations of a deceased occupant of land are admissible as evidence, if he had no interest to make such declaration. Shepherd v. Thompson, 4 N. H. Rep. 213. And his admission of the birch tree as a corner would be admissible on the same jarinciple in this case. Did he admit that the birch tree was the corner, by his silence or forbearance to deny that it was such, on the occasion referred to ?

If we could assume it, as a fact, that Webster knew nothing about this corner, and was only seeking information that he might know something about it, his silence would be no evidence of his assent that the monument pointed out to him was the true boundary of his land. If he knew nothing, the mere passive reception by him of the information which Wilkins communicated would be no evidence of an assent. But we cannot find the fact. It is a question for the determination of the jury, whether he did or did not know. Now, although the facts stated tend to show that he had no knowledge, this tact is not found by the case. Such evidence, therefore, may properly be left to the jury, with the instruction, if requested, that if they believe that the party is ignorant, and is in search of'information, his silence will not amount to an admission. But if otherwise, it will be entitled to some ■weight, although probably but slight, in aiding them to arrive at a conclusion. As no such instruction was asked for, the evidence was competent, and properly admitted.

There are also some questions relating to damages. Gilman says, that he counted and measured the stumps of the trees cut by the defendants, and gave a true account of them to Phillips. And Phillips says that he entered them correctly on a paper, as Gilman gave them to him, and thinks that paper is now at his house. That paper would be admissible in evidence. It would be, under the cirenmstances, an original memorandum, authenticated as it is by the testimony of these two witnesses. But a copy of it would not be admissible, without proof that the original had been lost or destroyed. The copy was improperly admitted.

The declaration of the plaintiff, that he had sold the-trees to Ely k Redington, was admissible evidence to affect the question of damages. If the fact were as declared to be, the plaintiff should not recover their value, since Ely k Redington would be entitled to an action of trover for them, when severed from the freehold, if the nature of the interest acquired by them through the sale admitted of no different remedy. Woods v. Banks, 14 N. H. Rep. 101.

The admission was proper evidence of the sale, though not conclusive, of course; and it was the defendants’ right that it should be laid befoi'e the jury. But the sale, if proved, would have no tendency to defeat the action. This might be maintained if there were no trees at all upon the land, since the gist of the action of trespass quart clausum fregit is the disturbance of the plaintiff’s possession, and the removal of the trees merely matter to be proved in aggravation of damages. Anderson v. Nesmith, 7 N. H. Rep. 167.

But Ely & Redington are not parties to the suit, or in privity with the plaintiff as to the land, even if they purchased the trees of him. Their admissions, therefore, as to the lines of the lot, are incompetent, and were properly rejected. Any purchaser of the trees, or as many purchasers as there were trees, might, on this ground, make admissions as to the lines, and if property in the trees or license to cut and remove them would make the admissions of such persons evidence, the declarations of those to whom they might convey their rights would seem likewise to be competent. The purchaser of the trees may easily be supposed to have inducements to assent to a boundary that the owner of the soil would not admit. He might have no motive for wishing to extend the enjoyment of his license as far as the remotest limit of the land over which it extended.

The instructions of the court on the question of damages were correct. The value of the timber as a personal chattel in the market may be a very inadequate recompense to a person, the value of whose land may depend upon its growing timber. One of the items of the damages done to the land was, that the defendant cut down the trees. The value of young timber, like the value of a growing crop, may be but little when separated from the soil. The.Jand stripped of its trees may be valueless. The trees considered as timber may, from their youth, be valueless, and so the injury done to the plaintiff by the trespass would be but imperfectly compensated, unless he could receive a sum that would be equal to their value to him while standing upon the soil.

The verdict must, for the reasons assigned, be set aside, and a ■ New trial granted.