Barstow v. Sprague

40 N.H. 27 | N.H. | 1859

Fowler, J.

The gist of the action of trespass guare clausum is the disturbance of the possession, and actual possession, though only mere prior possession, is sufficient to enable the possessor to maintain it against one who subsequently enters without title, or authority from one who has title. The jury found that the plaintiff, prior to and at the time of the alleged trespass, had been and was in possession of the locus in quo, and that the defendant had neither possession nor title therein. This finding, therefore, was entirely conclusive upon the plaintiff’s right to maintain the action, without regard to the question of her title to the premises in dispute between the parties. Anderson v. Nesmith, 7 N. H. 167 ; Sinclair v. Tarbox, 2 N. H. 135; Wendell v. Blanchard, 2 N. H. 456; Moor v. Campbell, 15 N. H. 208; Chandler v. Walker, 21 N. H. 282; Brown v. Manter, 22 N. H. 468; Berry v. Garland, 26 N. H. 473; Albin v. Lord, 39 N. H. 196.

The question, raised upon the admission of the copies of the will of Henry Barstow, is, therefore, entirely immaterial, so far as the present verdict is concerned, and only important as a matter of practice.

At common law, the probate of a will in the ecelesiastical courts was conclusive as to its execution only so far as related to personal property. By our statute, it is conclusive as to both real and personal estate, and may be proved by an authenticated copy of the will and probate. But no will is effectual to pass either real or personal estate here, unless it has been duly proved and allowed in a probate court of this State, or something equivalent to such approval and allowance has taken place. Rev. Stat. 157; Comp. Laws 402; Strong v. Perkins, 3 N. H. 517; Poplin v. Hawke, 8 N. H. 124; Noyes v. Barber, 4 N. H. 406; Farnsworth v. Briggs, 6 N. H. 561.

It was clearly competent for the legislature to provide that property here, real or personal, should not pass by any will unless proved here. In relation to all property within their territorial jurisdiction, the sovereignty of the State legislature is indisputable; and, by the well recognized principles of the laws of all nations, real property can pass only according to the provisions of the local laws of the country in which it is situate. Eyre v. Storer, 37 N. H. 114, and authorities cited.

By the 13th section of the 157th chapter of the Revised Statutes [Comp. Laws 403], it is provided that a duly authenticated copy of any will, executed with the formalities required by the laws of this State, which has been proved and allowed in a court of probate in any of the United States, or in any foreign country, pursuant to the laws thereof, and a copy of the probate of such will, may, by a decree of the judge, be filed and recorded in a probate office here, and such decree shall have the same effect as the probate of such will in this State would have had.

The 14th section of the same chapter requires the judge of probate of any county in which there may be estate on which the will may operate, to decree that such copies be filed and recorded, whenever they shall be produced to him by the executor, or any person interested, aceompanied by a written request that they may be so filed and recorded, if, upon due notice, no sufficient objection shall be made.

In order, then, that a copy of a foreign will and its probate should be competent evidence to show title in the devisee to land devised therein, situate in this State, it must appear that the will was proved in this State, or that a duly authenticated copy of the will and its probate elsewhere were filed and recorded in some probate office in this State, pursuant to a decree of the judge of probate to that effect, after due notice, upon application in writing for that purpose.

Neither of the copies, offered by the plaintiff and received by the court in the present ease against the defendant’s objection, were competent within this rule. It was not shown by either of them that the will had been proved in this State, or that copies of the will and its, probate in Massachusetts had ever been filed and recorded in any probate office here, pursuant to a decree of the judge of probate, upon written application therefor, and after due notice. No such decree could be presumed. The plaintiff was bound to show a strict compliance with the requisitions of the statute. The copies were not, therefore, admissible to show title in the plaintiff to the place of the trespass. But, as we cannot perceive that they were calculated to have any sort of bearing or influence, prejudicial to the defendant, upon the question of actual occupation and possession of the place of the trespass at the time of its commission and prior thereto, their improper admission furnishes no sufficient ground for setting aside the verdict, which is a necessary conclusion of law from the finding of the jury upon that question. Clement v. Brooks, 13 N. H. 92; Winkley v. Foye, 28 N. H. 519; Litchfield v. Londonderry, 39 N. H. 247, and authorities.

It was p>roper for the judge who tried the cause to direct the jury, against the objection of the defendant, to return, with a general verdict, answers to specific questions submitted to them. It might have been done against the objection of both parties, and no better illustration of the advantages of the practice in this respect could perhaps be suggested, than is furnished by the present case. But for it, the present verdict must have been set aside, and the parties subjected to the expense and inconvenience of a new trial. Johnson v. Haverhill, 85 N. H. 74, and authorities.

The exceptions taken to the proceedings of the court below, being overruled, there must be

Judgment on the verdict.