Atkinson v. Bemis

11 N.H. 44 | Superior Court of New Hampshire | 1840

Upham, J.

It has been long settled, that the original proprietors of townships hold not merely as ordinary grantees, but that they very early exercised certain corporate powers with respect' to the management and disposal of their lands ; and their successors have continued to exercise the same powers down to the present time.

In Coburn vs. Ellenwood, 4 N. H. Rep. 101, it is said, “ that there is no statute to be found in which the original proprietors of townships are expressly declared to be corporations ; but that there are several statutes prescribing the method of calling their meetings, and authorizing them to choose officers, assess money upon the proprietors, appoint collectors,” &c.

The statute of George I. chap. 79, gave them power and capacity to sue and be sued ; 1 Laws N. H. 583—and the statute of February 8, 1791, 1 Laws N.H. 246, gives them the same power and authority.

There seems to be no doubt, under these circumstances, that they should be regarded as corporations.

A conveyance, then, of certain rights of the proprietors, in common and undivided, by the deed to Apthorp, would merely make the grantee under that deed a member of the corporation, or proprietary ; and a title in the rights conveyed could only be enforced through the proprietary, in their corporate name, until partition of the lands had been made.

No title passed, then, by the Apthorp deed, which would enable the plaintiffs to sue in their own names. There is, besides, a farther exception as to the proof of this deed, which renders it of no avail. It was not acknowledged, and was not, therefore, properly entitled to record ; and an office copy was inadmissible evidence. The title would pass by the deed; but, as a matter of proof, the execution of the original deed must be shown before it is admissible as evidence.

But the plaintiffs show, by means of a vote of the proprietors, other evidence of title in this case, which, if sustained, makes out their case in full. This is a copy of the vote of partition, from the proprietors’ records, without evidence that the meeting was legally notified ; and the question is, whether this is a sufficient evidence of a conveyance of land.

It may be regarded as settled, that the proprietors of the common and undivided lands in the several townships in this state, and also in Massachusetts, may make partition by vote without deed, and in certain cases may convey their lands in the same manner. 4 N. H. Rep. 99, Colburn vs. Ellenwood; 3 Mass. R. 352, Adams vs. Frothingham; 12 Mass. R. 415, Springfield vs. Miller. The mode of conveyance, then, is well enough, provided the proper evidence of such conveyance is produced.

We had doubts at first whether the grantee of the proprietary ought not to be held to produce the original record of the vote, in order to show his title, the same as grantees by deed are held to produce the deed. But there is a material difference in the two cases ; as, in a case like the present, the original is in the hands of the grantors—the proprietary —and the grantee can have possession of a copy only. That copy, then, ought to be good prima facie evidence against them; and if it be against the proprietary, who clearly once were the owners of the land, it should be so against any one else who shows no title.

As the case, then, stands, a prima facie title of the proprietors is shown to be in the plaintiffs, and this is sufficient to put the defendant on proof of title; but he offers none. He entered upon the premises as a mere wrong doer, without pretence or color of title, and must be holden liable as a trespasser. There must, therefore, be

Judgment on the verdict.