Wiggin v. Smith

54 N.H. 213

• Court: Supreme Court of New Hampshire
• Decided: June 15, 1874
• Status: Published

Opinion

Sargent, C. J.

The exception to the deposition of Daniel Waldron was not well taken. We have examined the deposition and the caption, and find them in proper form. We have no doubt but that the magistrate was properly allowed to amend the caption, and we do not find that it was objectionable as thus amended.

The position, that the defendant may be a tenant at will of the plaintiff, and that this teuaucy has not been terminated, and, therefore, that the plaintiff has no right to the possession, and so cannot maintain this action, is not well taken. The defendant has pleaded the general issue, nul disseizin, which is held to be an admission that the defendant is in possession, claiming a freehold. If he is not in possession, he must disclaim or plead non tenure. If he is in possession, but claims less than a freehold, he should plead non tenure special. The defendant cannot therefore be allowed to contradict the direct admissions of her plea by showing that she was tenant at will of the plaintiff. Cocheco Manufacturing Co. v. Whittier, 10 N. H. 305, 309, and cases; Melcher v. Flanders, 40 N. H. 139, 155; Stark v. Brown, 40 N. H. 345; Williams v. Noiseux, 43 N. H. 388; Graves v. Manufacturing Co., 44 N.H. 462.

The second, third, and fifth exceptions are not well taken. We do not think this particular lot of land could be held as appurtenant to lot No. 6, as the defendant claims, as it is not included in the description of the alimony as decreed to her in 1859. If the husband had held adverse possession of this land for ten years, and the same had been set out by metes and bounds to this plaintiff as alimony, then, if she had continued the same possession for ten years more, she might have acquired title to it in that way ; but the land not being set off to her, there was nothing to transfer the husband’s possession to her, but he might have retained a separate and distinct adverse possession of this lot after the alimony was set out to his wife, and might thus have held the land by adverse possession, not only as against the original owner, but as against this defendant. The fee to no land outside the metes and bounds of the alimony passed by .the decree of alimony, and although certain rights and easements in other lands might pass as appurtenant to the land granted or assigned, yet in this case no such rights or easements were owned by her husband at the time of the decree of alimony, and of course could not pass by such decree. But in this case the defendant could not avail herself of any such rights appurtenant, because by her plea, as we have seen, she admits herself in possession, claiming a freehold in the land, and not merely claiming rights or easements as appurtenant to some other lands.

If the husband had possession of this lot here in dispute previous to and at the time of the decree of alimony, still this defendant does not in any way connect her possession with his, and that simply because this lot was not included in the alimony. If it had been, there would have been no doubt that the decree of alimony would have operated like any other legal conveyance of the land from her husband to herself, which would convey the possession if that was all the title which the husband had, and so give her the benefit of it. Wells v. Iron Co., 48 N. H. 491, 530. Outside of her alimony she takes nothing from her husband’s estate. She is not an heir, but a mere stranger, so far as his other lands are concerned in which she took no alimony.

But the fourth exception is, we think, well taken. It is well settled that the tenant may show title in a third person, in order to defeat the plaintiff’s action by showing that the demandant had no seizin of the premises, and of course no right to recover in this action. Bailey v. March, 2 N. H. 522, as modified by the opinion in the same case, 3 N. H. 274. It is well settled, also, that when an actual seizin is shown in the demandant, then the proof of a better title in a third person is no defence unless the tenant has that title. If he acquire such title during the pendency of the suit, that cannot avail him under the general issue, but the tenant may plead such newly acquired title in bar to the further, maintenance of the suit. It cannot avail the tenant to prove a better title in a third person than either the demandant or himself can show. If the demandant has proved actual seizin of the premises, that will enable him to maintain this writ against the tenant who has no title.

But when the tenant can in any way disprove the plaintiff’s seizin, that goes to the very gist of the action; for although the general issue admits the tenant’s possession of the premises claiming a freehold, yet it does not admit the plaintiff’s seizin, and that being the gist of his action may be disproved under the general issue. Berry v. Brown, 5 N. H. 156; Bean v. Moulton, 5 N. H. 450; Enfield v. Permit, 8 N. H. 512; King v. Barns, 13 Pick. 24; Smith v. Edminster, 13 N. H. 410; Cheswell v. Eastman, 16 N. H. 296; Bell v. Ham, 16 N. H. 302; Spence v. Smith, 18 N. H. 587; Hutchins v. Carleton, 19 N. H. 487, 511, 512, where the rule is stated to be, as established in this state and elsewhere, that where a party has shown a seizin in himself, his adversary cannot avoid the effect of it by showing a title in a third person; and the same rule applies when a person actually seized gives a deed to the demandant.

But when the evidence tends to show that the plaintiff was never actually seized, then the evidence of title in a third person may become material. Bergin v. McFarland, 26 N. H. 533; Jackson on Real Actions 4, 5, 157, 173. On page 4, Jackson says, — “ In this writ of entry on disseizin, the only title which the demandant sets forth is the actual seizin in himself, or of some ancestor or predecessor under whom he claims. This title is founded upon the simple principle that a person in possession of land may lawfully retain it against all others who cannot show a better right to it. When, therefore, the demandant has shown the seizin in himself or his ancestor, he has the right to call on the adverse party to show how he was authorized to oust the former possessor, and by what title he now claims the land ; ” and on page 5, “ that neither party shall show a title in a third person, unless he claims under it; or, in other words, that each pai'ty must rely on the strength of his own title, and shall not prevail merely by showing that a stranger has a better right than that of his adversary. This latter rule, however, does not prevent the tenant in a writ of entry from disproving the seizin alleged in the writ by proving that a stranger was seized during the period in question ; neither does it prevent him from pleading in the writ of entry cum titulo, that some other person is the heir of the supposed disseizee, and that so the demandant has no right to maintain the action as heir. Thus he is not merely proving that a third person has a better title than the demandant, but he is directly disproving the title on which the demandant relies to maintain liis action.”

So, on page 157, he says, — “ On the trial of this issue, it is first necessary for the demandant to prove the seizin in which his action is founded. * * This seizin on the part of the demandant must be proved to have been within the time prescribed by the statutes of limitations, as the tenant is not required to plead the statute specially.”

Again : “ The evidence of seizin on the part of the demandant may be rebutted by the tenant, without his undertaking to show any title or right of entry on his own part; ” so that, while the tenant cannot avail himself of the title of a stranger unless he holds under it, yet he may disprove the facts which the demandant has attempted to prove, by proving that lie was not seized, as alleged in his writ; and this evidence comes literally within the terms of the general issue, for if the demandant was not seized, he has not beeii disseized as alleged in his writ.

In the case before us, one branch of the tenant’s case was to show that the plaintiff had not had actual seizin of the premises since he had his deed in 1859, — alleging that she had been in possession all that time, and also alleging that his (plaintiff’s) grantor had not had seizin within twenty years and more before that time, thus showing that the demandant’s seizin was not within the time prescribed by the statute of limitations; that, before the plaintiff’s title or the defendant’s title, under her decree of alimony commenced, the plaintiff had, by the adverse possession of Samuel L. Wiggin, lost not only his actual seizin, but all right to be seized ; that this right of possession, and all title to the land, had passed from the plaintiff’s grantor before he gave the plaintiff his deed; so that neither the plaintiff had ever been seized of the demanded premises himself, nor had his grantor the actual seizin, or the right of seizin, or any right or title to the land at the time the plaintiff took his deed.

That would be disproving the plaintiff’s seizin most effectually, because if Samuel L. Wiggin had held this land adversely and uninterruptedly for twenty year's before the plaintiff took his deed in 1859, he gained a title by prescription, which would be the same as an absolute conveyance from the former owner to said Wiggin at the commencement of the twenty years, or prior to its commencement; and it could hardly be claimed that a man who had never had seizin himself personally, and whose grantor had parted with all right and title to the land, and also with its actual possession, more than twenty years before he gave the deed to the claimant, could maintain a writ of entry upon his own seizin.

If Samuel L. Wiggin held the premises adversely and continuously, according to the instructions given by the court to the jury, for twenty years before Waldron conveyed to this plaintiff, and had thus acquired a title by actual seizin and adverse possession for twenty years, and the defendant or any one else was at the time of the deed, and has been since, in possession of the premises, the plaintiff fails to make out his seizin on which he declares, and mustióse his case; and this is what the defendant’s evidence tended to prove, and we think it should have been submitted to the jury. From an examination of the minutes of the iudge who tried this cause, I find that the evidence on this point is not all stated in the case, and I am satisfied that there was evidence from which the jury might have found that Samuel L. Wiggin had acquired a right to this land by adverse possession before 1859, when Waldron conveyed to this plaintiff.

The plaintiff, in his brief, takes the position that from all the evidence stated in the case it appears affirmatively that Samuel L. Wiggin did not claim adversely, but that he admitted Waldron’s right and title to the land. If such had been the character of all the evidence before tlie court, there’ would not have been any occasion for the full and explicit instructions given to the jury in the case upon the point of adverse possession; for it will be seen that, according to the rulings of the court, these instructions could not have applied,to any other part of the case or to any other evidence than this. And taking the evidence just as it is reported in the case, concerning the adverse possession of Samuel L. Wiggin, and we think it was competent as tending to show that he had gained a title by prescription before Waldron’s deed to the plaintiff.

The defendant states that she occupied the premises in question for fourteen or fifteen months from June, 1839, and that the building on those premises was kept locked against Waldron and his tenants all this time, and that she never knew of the Waldron tenants occupying this shed or privy then or at any time since. Her occupation in 1839 would be that of her husband, of course. She then relates the conversation she heard between the plaintiff’ and said Samuel L. Wiggin in 1859, in which the latter claimed that he had gained the right of possession of these premises for some little time. After this she was astonished to hear said Samuel say that he did not own the laud, etc. Why was she astonished at this ? Evidently because it was in direct opposition to and contradiction of all that she had ever heard him say before. Is there any explanation to be given of this sudden change in his conduct in 1859 ? We must remember that this defendant obtained her divorce from said Samuel L. Wiggin that year, and in December, 1859, obtained a decree by which said Lot 6 was set off to her as alimony. This may account for a change of feeling on his part towards his late wife. And if she then claimed, as she now does, to hold this piece in question as a part of or as appurtenant to her alimony, he may have preferred that she should not hold it, and may have made this sudden change in his claims and position with that view. In that view it would be immaterial whether she could legally hold it or not. If she claimed to do so, and he preferred that she should not, it may account for this change in his conduct, and show a reason why he now might disclaim what he had claimed before. The jury might have found that his former claims were just and well founded, and that he had in fact acquired a title to this land in question before December, 1859; and they might find that he always so claimed until the quarrel with his wife, and that all that he said afterwards about his not owning it was to be attributed to that quarrel and his change of feeling towards his wife, and that the same was not true in fact. A jury might have found that the late wife had abundant reason to be surprised at these remarks, for the reason that they were untrue.

If Samuel L. Wiggin gained title to those premises by adverse possession before 1859 as against Waldron, then Waldron conveyed nothing by his deed to the plaintiff; and if the plaintiff has not since had actual seizin and possession of the land, then he cannot maintain this suit, and this may all be properly shown under the general issue. We think there was competent evidence to be submitted to the jury on the point of the adverse possession of S. L. Wiggin for twenty years before 1859, and for that reason there may be a new trial of that question. The verdict is right in other respects, and therefore need not be set aside; but a new trial will be granted on this one point, whether, between 1839 and 1859, Samuel L. Wiggin acquired the right to the premises in question by prescription. If the defendant so elect, she can have a new trial on that point, otherwise,

Judgment on the verdict.

At the trial term the defendant did not elect a new trial, but judgment was rendered on the verdict for the plaintiff.