11 N.H. 485 | Superior Court of New Hampshire | 1841
The case finds that the land conveyed by the defendant and March to the plaintiffs, on the 27th day of January, A. D. 1837, was described in the deed as “ beginning at a beech stub marked ; thence south about sixty-one degrees east, about one hundred and seventy rods, to Suna-pee Lake, on the line of land formerly owned by Abial Cooper”, &c. &c. ; and that the plaintiffs offered evidence tending to show that Cooper’s land extended to a line sixty-six degrees east, instead of sixty-one degrees east. The court ruled that by the description in the deed, the land conveyed to the plaintiffs was bounded by the line of Cooper’s land, and that the deed purported to convey nothing to which Cooper had a title.
This ruling of the court was undoubtedly correct. Had the defendant conveyed to the plaintiffs, land described as
It is strong] y intimated, in the case of Enfield vs. Permit, 5 N. H. Rep. 285, that where a party is bounded on a line, that line, as it actually exists, is the boundary, however the points of compass may be laid down in the description. In that case, the township of Grantham is described in the charter as bounded on one side by a line running “ south fifty-eight degrees east, by the south line of Enfieldand it was contended that, by a well known rule of construction, the line of the town of Enfield, and not the point of compass, was to fix the north line of Grantham. And it is said by the court: “If it appeared that the south line of Enfield was, at the time when the charter of Grantham was made, a known marked line, which had been previously run out, and monuments erected to designate it, it would certainly deserve very serious consideration whether the proprietors of Gran-tham could not hold to such line.”
That the line of land, when ascertained, is a monument, and will control courses and distances, appears also to be recognized in the case of Bates vs. Tymason, 13 Wend. 300.
Where land was described in a deed by courses and distances, and extended “ to land of the heirs of Peter Thurs-ton,” it was held that the line of such land being ascertained, was a boundary, which controlled and limited the courses and distances. Flagg vs. Thurston, 13 Pick. 150.
The other points in the case are clearly settled by the authorities in favor of the defendant.
The case finds that W. H. Cheney, and Forbes, the executors of the will of William Cheney, were authorized by the will to convey lands, and that in the month of December, 1830, W. H. Cheney assisted in a survey of land, preparatory to the conveyance by Forbes and himself to the defendant.
On the 10th day of February, 1831, Cheney and Forbes, the executors, conveyed the land in question, and other land adjoining, to the defendant Young.
On the 5th day of November, 1832, Young conveyed one undivided half of the same land to March ; and it appears that in the year 1832, and for several years following, Young cut timber on the land conveyed by the executors; but it does not appear that he cut timber on that part of the land conveyed to the plaintiffs.
In the year 1833, and for several years following, March cut and took timber from that part of the land which was afterwards conveyed to the plaintiffs.
Now against these evidences of title in the plaintiffs and their grantors, we have only the facts, that in 1835 Bailey went on the land, claiming it as his—that in 1836 he cleared some of it, and occasionally cut timber from it, and that he had no title except by his entry.
W. H. Cheney entered under a claim of title as executor of William Cheney, and surveyed the land. This was before the entry of Bailey. The executors were then seized. They had a sufficient seizin to maintain a writ of entry.
Possession under claim of title is prima facie evidence of a seizin sufficient to maintain a writ of entry. Straw vs. Jones, 9 N. H. Rep. 400.
Prior possession, under color of title, or a claim of title, is
What defence, then, could Bailey have made to an action by the executors ? Their possession was prior to his, under a claim of title ; and as he had no title, nor color of title, but only a naked possession, he could not have resisted them successfully.
If Bailey had no defence to a suit by the executors, still less could he have defended against those to whom the executors conveyed.
The executors, being in possession of the land, conveyed it to the defendant, Young, before the entry of Bailey. Young then had possession under color of title, which was prior to any possession on the part of Bailey. Straw vs. Jones, 9 N. H. Rep. 400.
He who enters under a deed which purports to convey to him a fee or a freehold, or under any other color of title to such an estate, is presumed to enter claiming according to his deed or other title, and his possession is seizin. Towle vs. Ayer, 8 N. H. Rep. 59.
It was not necessary for Young to show a seizin under an indefeasible title. A seizin in fact was sufficient, whether he gained it by his own disseizin, or were in under a dissei-zor. If, at the time he executed the deed to March, and March and he executed the deed to the plaintiffs, he were in possession claiming the land, he was seized, and had a right to convey. He was in possession under a deed from the executors. By his deed to March, the latter became seized, as he entered under color of title. Marston vs. Hobbs, 2 Mass. R. 439.
One in possession, claiming a fee simple in the land, is able to convey, and in such case the covenant of seizin is not broken. Bearce vs. Jackson, 4 Mass. R. 408.
It is immaterial whether the entry by Young, in 1832, and the cutting of the timber by him, were on that portion of the land which he afterwards conveyed to the plaintiffs or
In a suit by Young and March against Bailey, they could have shown themselves in actual possession before him, under color of title. He had no evidence to rebut their seizin, and consequently they must have recovered. Gibson vs. Bailey, 9 N. H. Rep. 168.
So in a suit by these* plaintiffs against Bailey, it would have appeared that they had a conveyance from one who was in actual possession under color of title ; and this is equivalent to actual possession by the plaintiffs, and would be sufficient to enable them to maintain a writ of entry against one who entered without a better title. Bailey vs. March, 3 N. H. Rep. 274.
As between the defendant and Bailey, the first possession, which the defendant had, is the better evidence of right. Possession is always presumption of right, and this presumption every possessor of land has in the first instance. Lund vs. Parker, 3 N. H. Rep. 49; Smith vs. Lorillard, 10 Johns. 338.
The case, then, stands thus: After the death of William Cheney, his executors entered and conveyed to Young. This was before the entry of Bailey. Young then entered, under color of title. Bailey’s claim, arising from his subsequent entry, was a mere naked claim without color of title, and cannot be sustained against the claim of Young. There is, consequently, nothing in the evidence to show any breach of the covenant of seizin.
Farther: Young being in possession, conveyed to March, who went into possession also. Their actual possession, and their title, and conveyance to the plaintiffs, are equivalent to an actual possession by the plaintiffs themselves. The plaintiffs, then, had color of title, and possession, and Bailey
The judgment of the court, therefore, is, that there has been no breach of the covenant of seizin.
Judgment on the verdict.
