Wells v. Jackson Iron Manufacturing Co.

48 N.H. 491

• Court: Supreme Court of New Hampshire
• Decided: July 15, 1869
• Status: Published

Opinion

‘Sargent, J.

*

1. The plaintiff claims the summit of Mount Washing-on .in this suit as being within tire limits of Thompson. & Meserve’s Purchase, which was granted by Willey, the State Commissioner, September 10, 1835; while the defendants claim the same summit, as being a part of Sargent’s Purchase, which was granted by the same Willey, May 31, 1832.

As the defendants’ grant was earlier in date, if the the two grants should be found to overlap and cover the same ground in part, or, in other words, if each grant in terms should be found to cover the summit of Mount Washington, then the prior grant, that under which the defendants claim, would hold the locus in quo.

But it will also be observed that neither of these grants is bounded by or upon the other, so as to cover and include all the land, but they are each described in such a way that when both are run out according to the courses and distances and monuments called for in each grant, it may happen that there shall be a strip of land, more or less, between the two; and the summit of Mount Washington for which both are contending in this suit, may prove not to be included in either grant, and not to belong to either of these parties.

Defendants’ grant, which is the earlier, has this description : “ Beginning on the northeast corner of a lot of- land given to widow Dorcas Eastman, of said Bartlett, by the Legislature of New Hampshire, thence running due west three and one fourth miles, thence due north so far as that a due east course extending to the west line of the town of Jackson or Pinkham’s Grant shall contain 25,000 acres; thence southerly on said westerly line of Jackson to the southwesterly corner thereof; thence south, so far as that a due west course shall strike the first mentioned bounds; excepting 150 acres which I have sold Otis Eastman belonging in said described premises, as his deed will more fully show ; and if any of the above described premises have heretofore been granted by authority of said State, they are to be reserved out of the same, and as many acres annexed on the northerly end of the above described tract, adjoining Pinkham's Grant.”

The first question that here arises is whether the 150 acres which Willey, the same Commissioner, had previously granted to Otis Eastman, is to be deducted from the 25,000 acres included in the grant, or whether the grant was of 25,000 besides that? We think, from an examination of the grant, its peculiar terms and limitations, that the construction which the court gave to it'was the correct one, and that the Otis Eastman grant of 150 acres must be taken out of the 25,000 included in the general description, which would leave only 24,850 acres granted to Sargent.

This Eastman grant did not stand upon the same ground as the other reservations did. That grant had been made by Willey, the same Commissioner who granted Sargent’s Purchase, and afterwards Thompson & Meserve’s Purchase, and what he had thus granted there was no uncertainty about; and we think it evident that he intended to except that out of the general description; but if any of said described premises had been previously conveyed by some other person in behalf of the State, and concerning which Willey might have no knowledge, then provision is made that this grant to Sargent shall extend far enough north to include other land outside the lines described, and outside the 25,000 acres so as to make compensation for such previous grants.

By some of the plans, the Otis Eastman lot w'ould appear, to come only partly within the limits of Sargent’s Purchase. If such should prove to be the fact, then only so much of it is to be deducted from the 25,000 as is thus included within the limits of the grant.

It may be properly noticed here also, that there is no reversionary interest or remainder in these grants that had been previously made, if any, conveyed to Sargent. Such grants, if any, are expressly reserved in the grant to Sargent and he is to have enough on the north of his grant to compensate for such prior grants. He is not to have whatever interest the State had, whether in possession or remainder, but he has the interest of the State in all that had not previously been granted; but if any had been thus previously granted, so much was expressly reserved and compensation therefor was made on the north.

Now if these previous grants, if any, should in any way revert or be forfeited, they would not go to Sargent, or his heirs or assigns, but to the State. Hence no question arises as to the occupation of any such previous grants or the rights of the grantees therein; these are matters between such grantees and the State; but Sargent and his grantees are only to show that the State had previously granted any portion of this territory, in order to be entitled to his addition on the north, without inquiring whether the grantees have ever asserted any right, or claimed their land or not.

The State may inquire concerning that matter and may assert any rights which it has in the premises, but no such contingent or uncertain interest was conveyed to Sargent.

But it will be observed that while all such prior conveyances are to be deducted, and compensation is to be made therefor on the north of the grant, yet that all such additions, by the terms of the grant, are “ to be annexed to the northerly end of the grant, adjoining JPinhharn’s Grant.”

Pinkham’s Grant was on the east of Sargent’s Purchase and so extending northerly or northeasterly. Whether this addition is to be made in the form of a square or a triangle with the side extending upon Pinkham’s Grant of equal length with the one extending upon the north line of Sargent’s Purchase, or in what particular form it is to be made, may be a question of interest on another trial, if any prior grants are proved to fall within the limits of Sargent’s Purchase.

2. The agreement that' was made, and from which the defendants now seek to be relieved, was neither wholly a voluntary agreement, nor wholly a compulsory one, but would seem to partake of the nature of both in some particulars. The plaintiff desired a trial; the defendants desired a continuance; the court intimated that some arrangement of this kind must be made by defendants in order to obtain the continuance; whereupon, in part, by way of submitting to terms, and in part, as a voluntary arrangement with the plaintiff, the agreement was made and the continuance granted.

At the trial, at the term subsequent to this agreement, the defendants were held up to its terms, and the papers were furnished to plaintiff according to this agreement so far as came to the knowledge of the defendants.

There is no claim, nor any ground for any, that we are aware of, that the defendants did not act in good faith and give notice of all the outs that they then knew of; nothing was fraudulently concealed or kept back by them. That trial went on and resulted in a disagreement of the jury; and now the partiés are to have a new trial; and the defendants say that they have, since the other trial, made important discoveries in regard to their title, unknown to them before — discoveries which may seriously affect their rights; and which they claim the court ought in some way to allow them to avail themselves of. Defendants have furnished us with an affidavit as to these new discoveries, which, in some views of the defendants’ case, may become very important to them; such as might, if the case should turn in a particular way, authorize the court to grant a new trial after the verdict, on the ground of newly discovered evidence, clearly such as would authorize the court to allow an amendment of the pleadings, if it were a case of review, so that the action would not be tried on the same issues upon review as before.

What was the object of the court and of the parties in entering into this arrangement in the first place ? The plaintiff was ready for trial. He had a prima facie case on which he was willing to rest till the defendants should put in their case. He might then be prepared to go along, or he might be surprised by the defendants’ evidence and be obliged to ask for a continuance in order to meet it. To avoid this latter event, it was stipulated that the defendants should give the plaintiff notice of their title and claims, seasonably, so that plaintiff might have ample time to meet such claims and perfect the trial at the next term. This was all accomplished, and the trial was completed, and the object of the agreement, whether regarded as a voluntary or a compulsory one was fully accomplished. The tact that the jury did not agree upon a verdict does not change the aspect of the case.

But we can hardly suppose that it was the intention of the court or the parties to hold these parties forever to their contract, provided any new discoveries should be made which would make such contract operate to bar or prejudice the substantial rights of the parties. The intimation was made by the court, and the agreement was entered into by the parties for the purpose of facilitating the trial; and, taking all the facts as they were then supposed and understood to be by both sides, the order and agreement were well enough and operated no injustice to any one. But suppose it should be afterwards found that there were claims, which neither party knew of and could not, by the exercise of ordinary care, have known, that should enlarge the defendants’ claim so that there could be no doubt about their right to recover in this suit if they were allowed to put in their whole case, and unless they were allowed to do so, their defeat would be equally certain, would not the court, in such case, upon some terms, allow the party to show the whole truth ?

If the arrangement which was made be considered as terms imposed by the court upon the defendants for the continuance which was granted them, then the court would modify its order, so as to impose as heavy terms upon the defendants as it was intended to impose at the time, but which will not necessarily sacrifice their whole case; or if this arrangement be regarded as an agreement of the parties, then the defendants would be released upon some terms from a bargain, which, as the parties then understood the facts, was fair and equitable, but which, when viewed in the light of the newly discovered facts would make'it utterly unconscionable to be performed or enforced. The change in the known circumstances of the party may make it necessary that he should be relieved from his contract in order to prevent gross injustice, if it appear that the agreement was made under a misapprehension of the real facts in the case; and if such a case is made, the court should prevent such injustice and grant the party such relief as will enable him to try his case on its real merits.

In Alton v. Gilmanton, 2 N. H. 522, the court in speaking of an agreement made by the parties in that case, said : “We consider this agreement as a portion of the materials from which the record is to be made up, and will not suffer the counsel or their clients to depart from it, unless on evidence to us that the agreement was made by mistake, fraud, or surprise;” and they add : “ Such facts appearing by affidavit, we could allow the agreement, like a plea under similar circumstances, to be withdrawn from the files; but without such affidavit it must be held conclusive.” And the cases go to the extent that such agreements are binding and conclusive upon the parties, unless upon a case made to the court they get relieved from them upon the ground that such agreement was made by mistake or surprise or fraud or under some misapprehension of the real facts in the case. So it is held that an-agreed case will be discharged if it is made to appear that through fraud, accident, mistake or misapprehension, the case embraces matters which did not exist, or does not contain facts which did exist at the time of the agreement and transfer and which were material to a proper determination of the rights of the parties. Haywood v. Wingate, 14 N. H. 73; Goodrich v. Eastern Railroad, 38 N. H. 395; Richardson v. Higgins, 23 N. H. 119; Gregory v. Pierce, 4 Met. 478; Bellows v. Stone, 14 N. H. 175.

If it shall appear that the agreement in this case was made through any mistake, or any misapprehension of the real facts in the case, on the part of the defendant, so that it embraces matters which did not-exist, or does not contain facts which did exist, at the time it was made and which are material to a proper determination of the rights of the parties, then the defendants should be relieved from such agreement in such away and upon such terms as shall seem to be just. This was not a solemn admission of a fact with full knowledge of the circumstances, but it may prove to be an agreement made under a mistake or a misapprehension in regard to the real facts in the case such as ought to entitle the party laboring under it to some relief. This matter can be fully heard on both sides if desired, and considered by the court at the trial term and such order made as shall appear to be just.

3. We do not understand the exception which was taken to the copy of the deed from Willey to Thompson and Meserve, to be insisted on. That James Willey was a witness and a grantor, as agent of the State, in the same deed, might have been a valid objection, had it not been proved that there were two James Willeys residing in Conway at the time of the execution of this deed. It might be fair to presume, under such circumstances, that the one who could be a legally competent witness was the witness to the deed, until some evidence was introduced to show the contrary. But this deed was clearly within the terms of the agreement into which the defendants entered, and concerning which there is no claim that the parties should not both be bound, nor do we understand that defendants seek to be relieved from his agreement so far as any evidence of this kind is concerned.

4. The testimony of Thompson, after his cross-examination, became incompetent and was properly excluded, as was his testimony on a subsequent page of the printed case.

5. The deed from Willey of the Iron Ore Tract was properly admitted, and the testimony of James 0. Willey as to what his father said when leaving home, as to where he was going and what he was intending to do, was properly rejected.

In order that declarations accompanying an act may become competent as a part of the res gestae, they must not only relate to those acts and explain them, but the acts themselves must be relevant and material, independently of what was said. Morrill v. Foster, 32 N. H. 360. Here the act of Willey in going from his house or home had no necessary connection with the bounds of Thompson & Meserve’s Purchase. James Willey’s minutes of the survey were also properly excluded ; they would have been merely hearsay if admitted, and it did not appear that the deeds followed, or were intended to follow, the surveys. So the testimony of Thompson in that connection should have gone out of the case with all his other statements that we have considered, as in the end he was shown to have no knowledge about it. He was not a surveyor and therefore had-no knowledge and could not testify as an expert, and the rest was simply what he heard Willey say when he was making a certain survey or, more properly speaking, a reconnoissance in that neighborhood, some days before the deed was executed, to which no allusion is made in the deed and none of the objects or monuments found or made or located during that reconnoissance, as spoken of by Thompson, are called for or alluded to in the deed; but, from the description in the deed, it is evident that it was the design to grant a certain quantity of land by measure extending from a given line on the north without regard to any bounds or monuments on the south.

The five questions to Thompson (see case, page 498, ante,) for these reasons and those stated in the former opinion in this case, were properly excluded.

6. There was no valid objection that we see to the question to and the answer of S. F. Spaulding.

7. The statement of Thompson that the road was on one occasion barred by pole and chains and no one allowed to pass till they had obtained Bellows’ permission, with much other evidence bearing upon the fact of Bellows’ possession of the summit of the mountain, and his claim to the same, were probably competent on the question of possession ; but in the view that we take of certain points in this case, that evidence will not be likely to be important upon another trial and w<3 have not given it much attention.

8. The motion for a nonsuit, with the ruling upon it, raises one of the most important questions of the case. We think that the ruling of the court that no competent evidence had been produced upon which the jury could ascertain the location or bounds of Thompson & Me-serve’s Purchase, and that plaintiff could not recover under the paper title from the State nor upon the second count in the writ, was correct. There has been no evidence of any survey, or any attempt to survey, this grant as it was granted, viz : — “ Beginning at the northwest corner of Pinkham’s Grant, thence running westerly to the south line of Shelburne Addition and the south line of Low & Bui’bank’s Grant to the northeast corner of Jeremiah Chandler’s Grant; thence due south on the east line of said Chandler’s Grant so far that a due east line extending to the west line of said Pinkham’s Grant, shall contain 12,000 acres, thence northerly on said west line to the first bound.” Date July 8, 1835.

Now the resolution of the Legislature of June 16, 1824 was that land be granted to Pinkham, on condition that he built a road (the land to extend one half mile from the road on each side), from Adams (now Jackson) to Durand (now Randolph).

Also resolution of July 4, 1834 directing Treasurer to convey said lands to Pinkham.

Plaintiff objected that this was not the grant to Pinkham referred to in subsequent conveyances but they show no other or different grant to Pinkham.

We find in Bellows v. Copp 20 N. H. 592, that there had been some prior grants to other persons of portions of the land granted to Pink-ham, which, of course, he did not hold. But that suit was not commenced till 1841. But the grant to Thompson & Meserve being made in 1835 soon after the Legislature had directed the conveyance of the land to Pinkham, the question is where the northwest corner of Pinkham’s Grant in 1835 was, not how much land Pinkham was finally able to hold under his grant ? That would have nothing to do with the starting point in running out Thompson & Meserve’s Purchase.

The grant to Pinkham must probably determine the starting point of Thompson & Meserve’s Purchase, and not the amount of land held by Pinkham under his grant. Taking his grant as granted, and beginning at the northwest corner thereof, would probably give the proper starting point for the plaintiff in running out Thompson & Meserve’s Purchase. The evidence on that point in this case was not very full cr definite, but it would seem, so far as we can judge, that this starting point must be upon Randolph line, or near there, in the town of Gorham. That will probably be made plainer by the evidence on another trial. When the starting point shall thus be fixed, and Thompson & Meserve’s Purchase shall be run out according to the original grant, there will be some evidence as to its proper location and extent, and as to whether it embraces the summit of Mount Washington or not.

It will be observed that this grant gives no right to compensation for any portion or all that may have been previously granted within the same limits. It only includes so many acres of land, and if it should be proved that any portion of this land had been previously granted, that would take so much from this grant without any right to compensation in any other place. Now it is very clear that there is no evidence in this case tending to show that the summit of Mount Washington is within the limits of Thompson & Meserve’s Purchase as granted. Can the plaintiff prevail on the ground of a prior possession ?

In the former opinion in this case, although it was held as here that there was no evidence that the summit of Mount Washington was within the grant to Thompson & Meserve, and that plaintiff could not recover on his second count, yet it was there held that the motion for a nonsuit was properly denied because there was evidence that John Bellows had possession of the summit of the mountain at various times between 1851 and 1859 and that this was evidence of his seizure as against the defendant who had then shown no title; and it was also said that the deed from Bellows to plaintiff would give the latter such seisin as would enable him to maintain this action against one who showed no evidence of title ; and to this latter point the following authorities are cited, Edmonds v. Griffin, 41 N. H. 532; Tappan v. Tappan, 36 N. H. 120; Carter v. Beals, 44 N. H. 413; Ward v. Fuller, 15 Pick. 185.

In Edmonds v. Griffin, plaintiff’s grantor had entered upon the land and then quitclaimed to plaintiff, and there was direct evidence introduced that the land in dispute was covered by the description in plaintiff’s deed.

Defendants offered in that case to prove that the title put in by plaintiff did not cover the land in controversy, and to show more particularly the manner of said Graham’s occupation, but claimed no title to the premises themselves.

But the court, at the trial term, among other things, ruled that the plaintiff having established a prima facie title, the defendants must show title in themselves in order to maintain their defence, But in the opinion of the court, that ruling was held to be erroneous, and it was held, Bellows, J., delivering the opinion, that the defendants should have been allowed to prove that the land in dispute was not included in the plaintiff’s deed; for in that case the right of the plaintiff might have been limited to what he actually occupied; and that it was competent, where a joint disseisin was charged and admitted and the issue being thus upon the demandant’s title, for the defendants to show that the demandant’s seisin did not extend to the land in dispute or a part of it. This is an authority that an entry by one upon a lot of land under color of title gave him seisin of the whole lot, and that this seisin might be transferred to plaintiff by a quitclaim deed, yet it goes to show that, unless the plaintiff had introduced evidence that the locus in quo was in fact included in his deed, such entry of his grantor could not avail him. It is clearly not an authority that a man who has a deed of a certain tract of land, but who goes outside his deed and commits a trespass upon another and then sells and conveys his lot simply, can give his grantee any right to repeat the trespass upon the land of a third person. It would seem absurd to hold that the entry upon land, by a person who had no color of title to it, the entry being a mere trespass, could be assigned to another so as to give him any seisin of the land so entered upon, by the conveyance of other lands not covering the tract thus entered upon.

We have examined the other three cases cited and find no authority for the principle above stated. It is there laid down that a party entering under color of title becomes seized according to his title, and that a person having title and a right of entry is supposed to have entered and to have become seized according to his title, and that an actual entry upon the premises by the plaintiff is not necessary when he has the title and the right of entry. It is also held in numerous cases cited in the former opinion, page 254, that possession is evidence of seisin as against a party having no title.

In Woods v. Banks, 14 N. H. 101, it is expressly held that a deed cannot be color of title beyond what it purports to convey. There the plaintiff entered upon a lot of land under a claim of right and surveyed it and marked the lines of it by spotting trees around it; this was held to be such a possession of the whole lot, that the plaintiff could maintain trespass against a party entering subsequently without right or title, though such possession would not be a good adverse possession against the true owner.

In this case there was no such taking possession of any particular lot and marking it out, so that Bellows could have maintained an action against any one for acts upon any other land than what he actually occupied, provided such land was not covered by his grant. Suppose Bellows had conveyed to this plaintiff just the land he had occupied by metes and bounds, and suppose his possession was so far evidence of title that his deed thus given would be evidence of title to his grantee, yet what color of title has this plaintiff to the locus in quo under a deed of some other piece of land not including the premises in question?

If John Bellows had conveyed to plaintiff, even by a quitclaim deed, “the summit of Mount Washington,” and then showed an actual entry on such summit by himself before he conveyed, such deed might give plaintiff the benefit of Bellows’ possession. But Bellows has conveyed by quitclaim deed Thompson & Meserve’s Purchase only, and upon this an entry had been made which being under color of title would be good to give the party entering or his grantee Bellows or this plaintiff, constructive possession of the whole lot, but such a deed could not give the plaintiff the benefit of Bellows’, or his grantor’s, entry upon some other lands not'included in the deeds, for there can be no constructive possession of land without color of title. Riley v. Jameson, 3 N. H. 23 ; Enfield v. Day, 7 N. H. 468 ; Hoag v. Wallace, 28 N. H. 547.

If Bellows has had a possession of the summit of Mount Washington sufficient to enable him to maintain trespass against a person entering subsequently without right, and this summit is not within the limits of Thompson & Meserve’s Purchase, then Bellows has never conveyed to this plaintiff any right which such possession’ would give him to the summit, but Bellows may still sue any party wbo has entered subsequently to him without title.

He has only conveyed Thompson & Meserve’s Purchase to plaintiff, and until there is some evidence to show that the summit of Mount Washington is within the limits of this purchase, we are unable to see what right this plaintiff has to it by virtue of a deed of that purchase only. Thompson entered upon the premises described in the Willey deed, and would have constructive possession of the whole land thus conveyed, but until there is some evidence tending to show that the summit of the mountain is included in and covered by his deed, he can have no color of title to aid his possession.

The authorities relied on by plaintiff to sustain his position are, Poor v. Gibson, 32 N. H. 417; Jakeway v. Barnett, 28 Vt. 324 and Burton v. Le Zelle, 16 Vt. 158. But Poor v. Gibson only holds, as the doctrine of the case is fairly stated in Morrison’s Digest, page 544, that plaintiff having a deed of lot No. 6, entered under it upon what he claimed by definite boundaries as being a part of it, the extent of the lot being matter of reasonable doubt: Held that he might maintain trespass against any stranger without title who had interfered with his possession whether the land was actually a part of lot No. 6, or not. That case only goes to the extent, that, if Bellows actually entered upon land claiming it to be his under a deed, he could maintain trespass against any one entering without title subsequently upon the land thus actually occupied by him, whether such land was included in the deed or not.

This is not doubted. Burton v. Le Zelle only settles that the owners of adjoining lots may settle the line between them by agreement and acquiescence, and when they have thus settled it, their lots will be bounded by that as the true line instead of the original line, when it is found that the agreed line differed from the original line; which is no authority for this case, for there the parties simply held to the agreed line instead of what would have been the line, if the parties had never fixed one by such agreement.

Jakeway v. Barnett was a case of a disputed boundary line between two lots, and the jury found that Gibbs, the defendant’s grantor, had actually occupied the strip of land in dispute, claiming that his deed covered it; that he had thus occupied it more than fifteen years, and had thereby in that State gained a title by adverse possession, as against the owner of the adjoining lot; and after having thus occupied under such claim he conveyed his lot to the defendant. It was a case where the court say, in the opinion, that the boundary given by the deed is somewhat equivocal, and where its true original construction is now stoutly contested. The court held that defendant was properly entitled to stand upon and hold to the boundary to which Gibbs had thus claimed and occupied.

In the course of the opinion the court say that the only question that seems to have been made at the trial was whether Gibbs, not having any color of title to the strip of land in question, could gain a title by an adverse actual occupancy, of which there was no doubt there or here. This case where the line in dispute was doubtful, and where the defendants’ grantor had actually occupied claiming title, until he had acquired a title by such adverse possession, even though the strip of land in dispute should be held to have been originally covered by the deed of the other lot; a case, as the court say, where the boundary line had been settled by occupation and afterwards the land had been conveyed according to such boundary, is not in point to establish or sustain the doctrine here contended for by the plaintiff.

The question involved in that case is clearly one of a disputed boundary line between two lots of improved and cultivated land, where it is held that the parties may, by agreement or by adverse use and occupation, establish a line between them by which they shall both be bound though it may differ from the original line.

But that principle can hardly have an application to large tracts of wild land, where neither party has had anything but a constructive possession of their lots, where the lines have never been run or attempted to be run according to the grants, and where the parties have never agreed or attempted to agree upon any line between them, and where it must depend upon actual survey to establish the fact whether the tract which the plaintiff claims is bounded on the south by Sargent’s Purchase or by lands of the State.

This point was not at all considered in the former opinion, indeed the case does not show, that the point was taken, or in any way alluded to by counsel, and hence we should not probably feel ourselves barred from a reconsideration of the point under the peculiar circumstances of this case.

Our impression is-that any right which John Bellows acquired by any entry upon or possession of the summit of Mount Washington cannot be held to have passed to this plaintiff under his deed of Thompson & Meseiwe’s Purchase until there is some evidence that the grant to Thompson and Meserve covered and included this locality.

It has been held in this State that when a demandant has a conveyance from one who was in actual possession under color of title, this is equivalent to an actual possession in the demandant himself; Bailey v. March, 3 N. H. 274; Buck v. Young, 11 N. H. 485; and that a quitclaim deed from one who has1 possession under color of title transmits that possession; Edmonds v. Griffin, 41 N. H. 530; and that a deed of a lot of land from a party who has made an entry and survey of the whole lot, may give color of title to the whole; Woods v. Banks, 14 N. H. 101; Farrar v. Fessenden, 39 N. H. 280; Cobleigh v. Young, 15 N. H. 493.

And as possession is evidence of title whether of real or personal property, and conclusive evidence, unless impeached or explained; Stevens v. Reed, 37 N. H. 53 and cases cited; the actual possession of a lot of land, and the conveyance by quitclaim of that lot by the party thus possessing, might convey such possessory right to so much of the land as had been actually occupied, to the plaintiff; but it would seem little less than an absurdity to . hold that a conveyance of some other lot which might or might not adjoin the one in controversy, could give any right to a lot not thus conveyed. We think that the motion for a nonsuit should have been granted upon the facts as they stood at the time the motion was made.

9. We see no objection to the copy of deed from Willey to Sargent. It was not the middle link in the chain of plaintiff’s title, but it was the first; and the rule is that if the last link is proved genuine, if the original deed to the plaintiff is produced and properly proved, copies may be introduced to prove all the other links in the plaintiff’s chain of title, including the first. Besides it was afterwards proved that the original deed was lost, and therefore secondary evidence of its contents was properly admitted, and still further, the same question seems to be settled in the former opinion.

10. The objections to the Williams deed do not at first view seem to be well taken. The deed purports to convey just what was taxed, to wit, the unincorporated and unorganized tract of land known as Sargent’s Purchase, and would not include in its description any portions that had been annexed to Jackson or Bartlett, nor does it become by any means certain from the testimony of the witness that anything more was in fact sold; but as that matter may not be certain upon the testimony, it was perhaps well enough to submit that question to the jury; nor do we see any particular objections to the instructions given upon that point.

We have not given much attention to these eight objections to this deed or to any of them but the seventh. It may be proper to remark in relation to all of them, that they are not made by any party who appears to have any interest in the land described in the deed or in the sale of the same for taxes, and that so long as the plaintiff shows no title to the premises in question, he is in no position to raise any objections to the defendants’title. No parties interested as owners of the land sold for taxes, have objected or do object that the sale was not legal and proper; and so long as that is so, it does not lie in the mouth of third persons, who show no title or interest whatever in the premises sold, or in the land here in dispute, to object to the sale, or the form of the deed, or to any of the proceedings connected with such sale. The plaintiff must first show that the summit of the mountain is included in the grant to Thompson & Meserve; and then it must appear that Sargent’s Purchase, with such additions on the north and adjoining Pinkham’s Grant as are proved to belong there, will also include and cover the same summit, so that the plaintiffs will be in danger of losing something which his deed conveys to him, in consequence of the priority of the grant to Sargent, before plaintiff will show any such interest or title as will authorize him to inquire farther than as to the authority to convey and whether there was a conveyance under that authority. Thompson v. Carr, 5 N. H. 517.

Until such proof is made the defendants’ title is well enough, because the plaintiff is an entire stranger to the same. But if the plaintiff should make the proof suggested, and show his title to the premises in question under his grant, and the other proof should also be introduced, viz., that the grant to Sargent also covers the same premises, then the plaintiff will have such an interest that he may require the defendants to show that the authority under which the sale was made was strictly pursued. French v. Eaton, 15 N. H. 343; Wellington v. Gale, 13 Mass. 483; Smith v. Bodfish, 27 Maine 289.

The seventh objection was not well taken. This objection was that the copy of the warrant sent to the deputy secretary of state was sent back to the sheriff instead of a copy of that copy as required by law. The statute of July 4, 1829, (N. H. Laws 1830, page 563), provides that the collector of said taxes shall on, &c., deliver to the deputy secretary for the time being ‘ ‘ a copy of his list ” of all such taxes made out as aforesaid and signed by the selectmen, &c., and the said deputy secretary shall keep “said list,’’ &o., and receive the taxes therein contained, &c., and after the first day of September, on application, &c., said deputy secretary shall return to said collector “ a copy of his list aforesaid” and the money he shall have received thereon, &c. Whether- the deputy secretary is to return the original copy of the list or a copy of the copy which is in one place termed a list, is not clear from the wording of the statute, and we think the law would probably be sufficiently complied with by a return of either the copy of th§ list, or a copy of the copy which is in the same section improperly called the list. But upon the whole we think that the course was followed in this case which the statute intended should be pursued, for the same section goes on to provide that any collector who may have received “ copies of their lists” from said deputy secretary, shall publish, &c., thereby showing that it was a copy of the collector’s 'list, that was to be returned instead of a copy of that copy, as claimed by plaintiff.

And the Revised Statutes which did not evidently intend to change the law, in this respect, make the matter certain by providing that said deputy secretary shall return “ said copy,” that is, the one he received from the collector. The proceedings in this respect on the part of the sheriff were well enough.

11. The plans were properly introduced as tending to show an allotment. See former opinion.

12. The record from the Secretary of State’s office of the deed from Willey to Thompson & Meserve, was properly introduced and also the record from the Coos County Registry. The original deed was lost and these both were or purported to be copies of said deed, but they differed in the description of the grant in a material point. Both were secondary evidence of the contents of the deed, and upon all this secondary evidence it was for the jury to find what the original deed was.

13. We think the act of 1786 appointing Buckman and others to sell certain State lands was properly admitted, with a view of showing that previous grants had been made of the lands which were covered by Sargent’s purchase.

14. An important question is here raised in regard to the admissibility of a copy of a deed to prove not only the existence but the proper execution and delivery of an original deed. Here the proper evidence was offered of an unavailing search for +he original deed where it should have been, or would be likely to have been found and the objection that no part of Sargent’s Purchase could be proved to have been previously granted was properly overruled.

It is well settled that after proof of the original deed to himself or of his title by descent or devise, a party may use an office copy of a deed to which he is not a party but which constitutes a part of his chain of title, as prima facie evidence, without showing the loss of the original and without proof of execution or delivery. Harvey v. Mitchell, 31 N. H. 582; Horner v. Cilley, 14 N. H. 85; Farrar v. Fessenden, 39 N. H. 269; Forsaith v. Clark, 21 N. H. 409; Stevens v. Reed, 37 N. H. 53.

In Southerin v. Mendum, 5 N. H. 428, it seems to be held that a party may prove the contents of the deed to himseli by a copy when the original is lost, without proof of the execution of the original. But it would not now be recognized as a binding authority to that extent. We see no reason why the party should not be held to prove the execution of the original deed by a subscribing witness, when it can be done as much when the copy is used as when the original is produced and used, and when a party wishes to prove title in a third person, not in the chain of his own or his adversary’s title a copy is not admissible until the original has been sought for and proper effort made to obtain it, and then if the copy is used it is only to prove the contents of the original, after proof that such original was properly executed. Pollard v. Melvin, 10 N. H. 554.

In Cram v. Ingalls, 18 N. H. 612, it is said that an office copy of a deed to a party to the suit, which is regularly recorded, may, after notice to the party to produce the original, be used by the other party to show the execution of the deed; but this will not show any delivery of the deed without other evidence. But this is upon the principle that slight evidence is sufficient against a party who withholds that which is the best.

In Melvin v. Marshall, 22 N. H. 383, it is held that the subscribing witness should be called when the original is lost, and a copy produced, the same as he must be if the original were produced. Perley, J., says : ‘ ‘ In this State it is believed to have been the practice in case of a lost deed, to prove the execution by the subscribing witness as where the original is produced; to give in evidence a copy from the records, with such other proof as the party was able to produce, to show that the deed recorded was the same that the witnesses had seen executed ;” and he says that the court consider this the proper course to be taken. ' So in State v. Shinborn, 46 N. H. 503, Bellows, J., says : ‘ ‘ Where a writing is lost the evidence of its execution must in general be the same as where it is produced, with the exception of what may be derived from comparison.”

There is great looseness and apparently some conflict in the authorities, as to how far an office copy of a deed, when not used in a chain of title, shall be allowed to be evidence of the execution of the original deed, but it is believed that when a copy is not thus used in a chain of title, it is evidence only of the contenis of the paper of which it is a copy; and that whatever proof of execution would be needed, if the original was produced, should also be required in case the copy is used.

In Felton v. Pitman, 14 Geo. 530 it is held, (Lumpkin, J.,) that if a deed be lost, the subscribing witnesses must first be called, if known, unless dead or insane or beyond the jurisdiction of the court, but if the subscribing witnesses are not known, other testimony is admissible to prove the execution. So in Marriner v. Saunders 5 Gilman Ill. 113, the court say (Eaton, J.) : “The execution of a lost deed must be quite as strictly proved as if the deed were produced in court.”

In Dunlap v. Glidden, 31 Maine 510, it is held that “a conveyance of land cannot be proved by parol evidence of the contents of a . lost paper, unless it be proved that the paper was a deed legally executed.”

If the original has been lost or destroyed and two or more parts have been executed, the loss or destruction of all the parts should be proved before secondary evidence of the contents can be received, and the original deed ought to be proved to have been duly executed, unless proof of the execution would be dispensed with, if the original itself were produced, or unless the want of the original is occasioned by the default of the other party; in which case the execution may reasonably be presumed against him. So when an original note of hand is lost, a copy cannot be read in evidence until the original note is proved to be genuine. 1 Phil. Ev. (C. & H.) 452; Goodier v. Lake, 1 Atk. 446; Batchelder v. Nutting, 16 N. H., 261, and cases cited.

The course of proceeding in such cases is stated in Hewes v. Wiswall, 8 Greene 94, where the demandant in a real action, having produced an office copy of his title deed, and proved that the original once existed, and was genuine, and that the subscribing witnesses were out of the jurisdiction, and having made affidavit of the loss of the original, was permitted to read the copy in evidence; Peck v. Clark, 18 Texas 239; so in Kimball v. Morrill, 4 Greene 370; the court say, (Preble, J) : “ When a party, on an issue to the country, would avail himself of an instrument in writing, lost by time and accident, he should first prove that an instrument was duly executed, with the formalities required by law, and secondly that the instrument so executed has been lost. Then and not till then, he is permitted to give evidence of its contents.”

In 3 Phil. Ev. (C. & H.) 1220, Note 865, the course of proceeding in cases of lost instruments is stated and the authorities cited, and the rule is stated to be that where secondary evidence of an instrument is admissible, the execution of the original must in general be proved. If the lost bond or deed was attested by witnesses, they should be called, or an excuse rendered for their absence, before other testimony can be received. That when witnesses cannot be produced, the confessions of the opposing party, the admissions of the existence of such instruments are a species of evidence often resorted to in establishing the genuineness of lost instruments. But that when no direct testimony on the point of execution or former existence of an instrument appears to be attainable, the fact may be proved by circumstances.

As bearing upon this last point see Sicard’s Lessee v. Davis, 6 Peters (U. S.) 124; Jackson v. Woolsey, 11 Johns. 446, 454; Montgomery v. Dorion, 7 N. H. 475, 483; Forsaith v. Clark, 21 N. H. 418; Neally v. Greenough, 25 N. H. 331; Downing v. Pickering, 15 N. H. 344; New Boston v. Dunbarton, 15 N. H. 344; Colby v. Kenniston, 4 N. H. 262.

As to proof of delivery as well as execution we have examined the authorities and find the great weight of authority to be that when a deed is shown to have been properly executed, acknowledged and recorded, that is prima facie evidence of its delivery ; but that this prima facie case may be rebutted by proof. Some of the authorities go so far as to hold that the simple record of a deed is such prima facie evidence of delivery, but we think that would be too loose a doctrine to be applied with safety.

We think the principle is correctly stated in Bigler v. Cloud, 14 Penn. 361, where the court say, (Coulter, J.) : “ The crowning act in the execution of a deed is its delivery. But it is not necessary to prove the actual manual investiture. The delivery may be inferred or presumed from circumstances. Thus the signing, the attesting by witnesses, the acknowledgment by the grantor and the recording of the deed have been considered full prima facie evidence of delivery.” But the evidence is not conclusive. Juvenal v. Jackson, 14 Penn. 524; see also Hammill v. Hammill, 19 Ohio 17; Stewart v. Reddett 3 Md. 67-77; Warren v. Jacksonville, 15 Ill. 236; Mitchell v. Ryan 3 Ohio N. S. 317; Bulkeley v. Buffington, 5 McLean 457; Loomis v. Pingree, 43 Maine 299; Ward v. Fuller, 15 Pick. 185; Bentley v. Atwell 12 Call. 281.

We think the ruling of the court in this case excluding these copies was correct as the case then stood. For it does not appear that there was not other and better evidence of the existence and execution of the deeds which might have been produced. The subscribing witnesses must first be called, if living and within the jurisdiction. The grantor might next be called and then the grantee, but if none of these could be found, any person who had ever seen the original and could testify as to the handwriting of the witnesses or the grantor as it seems. The officer who recorded it, if living, might show something of it. We do not mean to decide that the evidence which defendants offered might or might not be sufficient to warrant its admission, if it had been made to appear that no other evidence was in existence, and in reach of the- party, upon making reasonable search and inquiry. ■

As stated in the note to Phil. Ev. supra, it must be made to appear that no direct evidence on the point of execution or former existence of the deed is attainable, before the fact can be proved by circumstances ; and the circumstances of each case would probably differ from those of every other case, and no rule can be laid down that would apply to all.

15. Plaintiff’s exception to the introduction of the act incorporating Adams (now Jackson) was properly overruled. No notice was required, as this evidence was not covered by the agreement.

16. The court ruled correctly in giving construction to the grant of Adams, where it run by State land ; that would, by the ordinary use of terms, exclude the State land. 2 Hilliard onR. P. p. 349, sec. 114 and cases cited. He says, in speaking of words used to express boundaries, to, from and by are terms of exclusion, unless by necessary implication they are manifestly used in a different sense. Breck v. Young, 11 N. H. 485; Enfield v. Day, 11 N. H. 520.

17. The ruling as to the west line of Jackson, that the charter would govern rather than the plan of 1806, unless the town was run out and located by marking the lines about it, about the time of the making of the plan, which lines varied from the charter. If there was in fact a practical location of the town under the charter, with lines marked and well defined but varying from the charter, such actual location might govern.

18. The ruling that the old plan of 1806 had no legal tendency to show that a line was run and marked on the ground by monuments in accordance therewith, was wrong. This plan of 1806 was jorima facie evidence of the true lines between the towns and was competent to be submitted to a jury, as tending to show the lines between lands of individuals whose lots are bounded on the town lines. Adams v. Stanyan, 24 N. H. 405. This map'was probably made in pursuance of an act of the Legislature of December 30, 1803, making it the duty of the several towns in this State to cause “ an accurate survey of the same to be made” and transmit a map thereof to the Secretary of State “containing the exact limits of said town by careful admeasurements,” &c. This act was extended, and this map was made and filed, as may be properly assumed, under its provisions and requirements, by making an actual survey of the town and getting the exact limits of the town by careful admeasurement. We should usually understand by these expressions, that the survey and measurements were or would be according to some lines actually marked on the ground previously, or if not so marked before, that they would of course be so marked at the time. Their being designed as lines of the town would be a sufficient reason why they should be so marked if not so marked before. We think this map had some tendency, made under these circumstances, to show that a line corresponding with said plan was run and marked also upon the ground at that time if not before.

19. That the selectmen of Jackson in 1825 undertook to run a new town line where there was no line before, and differing from both the charter and the plan of 1806, was evidence of nothing and was properly rejected. That they perambulated the town line in 1832, following the lines as laid down on the plan, and that they claimed to those lines, might tend to show a practical location according to the plan, and we see no objection to the competency of that evidence; nor do we see why the fact that people living between the two lines on the south of Jackson, voted and paid taxes in Jackson in 1832 and for several years next preceding, might not have been properly admitted as a circumstance bearing in the same direction, though perhaps practically having ho great weight.

20. The evidence offered as to Pinkham’s examination of the land west of Jackson with a view to the construction of his road, was properly ruled out we think. His act may have tended to show his private opinion as to where the line run, but it does not appear that he had any knowledge of the fact.

21. We see no objection to the question to Weeks as an expert.

22. We do not see the relevancy of the question to Johnson, as to what Barker told him. Barker had no authority to make admissions or to settle lines that were in dispute, and what he said about it would be the merest hearsay.

23. The exception to the resolution authorizing the State Treasurer to convey a tract of land to Dorcas Merrill had no foundation.

24. What Meserve said to Barker about the maple tree being the corner of Sargent’s Purchase was incompetent. Meserve was agent for defendants, to look after lands, pay taxes and see to trespassers; whatever he may have done or said beyond that was not within the scope of his authority and could not bind the defendants. What Pickering said to Barker on the same subject might be competent to show that the maple tree was a corner of the D. Merrill lot as located, but beyond that it was not competent. He had no authority to fix the bounds to Sargent’s Purchase. What Willey said to Barker about the maple tree being a corner of the Merrill lot could hardly have any bearing, for he did not convey the Merrill lot and could* at most only show that he understood the lot to be located so as to make that a corner. But the minutes Barker took from Willey' show that this is the n orthwest corner of the D. Merrill lot, and not the northeast corner from which the survey of Sargent’s Purchase commenced, and the 100th question was properly excluded because it did not follow, if the maple tree was the southwest corner of the Iron Ore Tract as surveyed, that it was the southeast corner of Sargent’s Purchase. The maple tree is the northwest corner of the D. Merrill lot as it is claimed to be located, but the corner of Sargent’s Purchase is the northeast corner of that lot, if it goes no farther east than that. It would seem simply that in running* out the Iron Ore Tract they went too far -west at least by the width of the D. Merrill lot and overlapped that much upon Sargent’s Purchase.

25. We think the ruling excluding Emery’s and Meserve’s statements was correct; also most of Meserve’s statement that follows was clearly incompetent. The pencilling on the plan, as stated by Meserve, we think incompetent to prove anything ¿ it was not identified as being the act of any one or as put there for any purpose.

26. But we pass over the particulars as proved and offered to be proved, to the ruling of the court, that there was no evidence upon which the jury could find that the northwest corner of the Dorcas Merrill lot was the starting point from which to run out Sargent’s Purchase instead of the northeast corner named in the deed to Sargent. What Willey said before the deed to Sargent would be incompetent so far as it did not correspond with the deed afterwards given, and what he said afterwards would be incompetent so far as it tended to contradict the deed he had given, and we think the ruling right in this caso as it was on the former trial.

27. We find no objection to questions and answers of Barker except as ruled out as irresponsive to interrogatory 53.

28. Proper questions to an expert.

29. George P. Meserve was called by plaintiff and was then found to be the agent of defendants for certain purposes. Plaintiff then moved for leave to put leading questions to witness, which was denied. That wa3 a matter clearly within the discretion of the court at the trial, and we will not revise it. 1 Phil. Ev. (C. & H.) 269; People v. Mather 4 Wend. 257; Stafford v. Sanford, 9 Conn. 284.

30. The admissions of the party were properly received as evidence, but they were not conclusive. Barker v. Holderness, 44 N. H. 414; Eastman v. Cooper, 15 Pick. 276, 281, 287. Such admissions would have no weight where it was shown that the admission was made through a mistake or misapprehension of the facts as they were afterwards proved to exist.

31. 32 & 33. As to Bellows’ possession of the summit of Mount Washington, this evidence becomes immaterial in the view we take of the case.

34. Evidence once put in may be used for any purpose for which during the course of the trial it may become competent.

35. The bill once pending before the Legislature, but not passed, .is no evidence as to the bounds of Thompson & Meserve’s Purchase. The original grant defines this Purchase sufficiently, as it would seem, and unless plaintiff desired to have its limits changed, he did not need any legislation on the subject.

‘ 36. Relates to Bellows’ possession of the summit, and becomes immaterial.

37. Ruling right, but has no application now.

38. The instructions for ascertaining the bounds of Sargent’s Purchase were correct — the same as settled in the former opinion.

39. The instructions were correct as to the consideration of the admissions of the party as to the location of the D. Merrill lot. If the admissions were made with a full knowledge of all the facts in the case, then they should be weighed as important evidence against the party making them; but if made under a misapprehension or in ignorance of the real facts, then the force of the admissions might be done away with.

Case discharged.

Perley, G. J., and Bellows, J., did not sit.