Amazeen v. Newcastle

81 A. 1079 | N.H. | 1911

The allegations of want of capacity in Mrs. Martin to make the conveyance, of fraud in procuring its execution, and of mistake in its form having been found against the plaintiffs, the only grounds upon which they now attack the validity of the deed are that the selectmen were not authorized by vote of the town to make the contract for support found to be its consideration, or to accept the conveyance. This means that the deed was without consideration and was never delivered as matter of law.

The first objection is not open to the plaintiffs claiming as heirs of the grantor. "A deed duly executed is conclusive evidence of the consideration against the maker; not indeed as to the amount, but as to the fact of the consideration paid; so that, as between the parties and those claiming under them, the consideration cannot be impeached for the purpose of defeating the conveyance." Prescott v. Hayes, 43 N.H. 593, 596, 597; Farrington v. Barr, 36 N.H. 86; Graves v. Graves, 29 N.H. 129, 144; Runnells v. Bosquet, 60 N.H. 38, 39. Moreover, the contract for support found to have been the consideration of the conveyance has been fully performed by the grantee, the town. Mrs. Martin could have made the conveyance without any consideration, and the gift would have been valid as against these plaintiffs. As she made the conveyance for a consideration which she deemed adequate and which was paid her in full, it is immaterial if such consideration has proved to be less onerous to the grantee than it might perhaps have been anticipated it would be.

The deed was delivered to and accepted by the selectmen as officers of the town, placed among the town papers, and has ever since remained in the possession of the town. The town entered upon the execution of the contract of support, took possession of the buildings for the purpose of repairing them, and did repair them. Although there was no vote of the town ratifying the action of its officers until after the death of Mrs. Martin, it could be found that the town before her death were estopped to deny their acceptance of the deed; for corporations, like natural persons, may be estopped by conduct. Gilbert v. Manchester, 55 N.H. 298, 302, 303. Whether the selectmen had authority to bind the town by the agreement to support, they had power to accept the conveyance to the town if of benefit to the town. O'Donnell v. Smith, 142 Mass. 505, 510. The occasion of the transaction was the possibility that Mrs. Martin's small property might not be sufficient to support her through life. If it did not because of insufficiency or waste, the selectmen would have been obliged to support her at the expense of the town. P. S., c. 83, s. 1; Ib., c. 84, s. 1. If at her decease any property remained, the town could have recovered its expenditure therefrom. Laws 1903, c. 42. The selectmen, as the prudential officers of the town, would have been authorized to receive payment. They were equally authorized to take payment in advance when offered. Mrs. Martin's application to the town to take her property and furnish her with support was practically an application for aid as a poor person, in making which it was her duty to surrender what property she had to the selectmen. Moultonborough v. Tuftonborough, 43 N.H. 316, 319. In this view, the whole matter was within the jurisdiction of the selectmen as overseers of the poor.

But the case need not stand on either of the foregoing propositions, because the town by vote before the commencement of these proceedings recognized and approved the action of its officers. Subsequent ratification is equivalent to an original authority. Manchester Street Ry. v. Williams,71 N.H. 312, 320; Davis v. School District, 44 N.H. 398, 407. It is true that the votes of the town from which ratification could be found were not passed until after the death of Mrs. Martin. But this is not the case of a deed executed and given into the keeping of a third party for delivery to the grantee at some future time, with a right of recall by the grantor. In such case it has been held that if the grantor continues until his death to have the right to recall the deed from the depositary, there is no delivery. Baker v. Haskell, 47 N.H. 479; Cook v. Brown, 34 N.H. 460. But the delivery was absolute to the selectmen as agents of the town; and as it could be found the deed was beneficial to the town, the assent of the town is presumed. Johnson v. Farley, 45 N.H. 505; Frazier v. Perkins,62 N.H. 69. The deed was delivered as the present deed of the grantor. Stockwell v. Williams, 68 N.H. 75. No further or other delivery of the deed was intended or could be made. The grantor accepted payment of the consideration from the grantee and permitted expenditure in repair of the premises by the grantee upon the faith of the deed. She was estopped to deny the validity of the delivery or the authority of the town officers to accept the deed and make payment. The grantor had no right to recall the deed, and there was a good delivery. Baker v. Haskell, 47 N.H. 479, 480.

Exception overruled.

All concurred.