16 N.H. 296 | Superior Court of New Hampshire | 1844
The case shows that on the 6th of October 1825, a deed competent in form to convey from Thomas Cheswell to Nancy and Caroline his daughters, the land claimed by the contending parties in this case, actually passed from the hand of Thomas to Nancy one of the supposed grantees. In order that that tradition of the writing should avail as a delivery of it, there must be shown to have been an intention on the part of the supposed grantor that such should be the character of the act.
The authorities are perfectly clear that acts of an equivocal character may, by evidence of the intent with which they are performed, be made to take effect as a delivery of the deed. While on the other hand, an actual passing of the instrument from the hand of the maker to the party in whose favor its purport runs, is if without the evidence of such intention, a perfectly ineffective act. Cr a delivery of a deed may be accomplished by mere words alone on the pai’t of the grantor, if the instrument actually come to the hands of the other party. Co. Litt. 360; Com. Dig., Fait, A 3; Wheelright v. Wheelright, 2 Mass. 447.
It appeal’s to us therefore as a proposition not to be questioned, that some evidence tending to show the intention with which the deceased party Thomas Cheswell
Nor do we see any just objection to the kind of evidence which was introduced for that purpose. We know of no rule which requires evidence adduced to explain the intent of a party in performing an act, to be restricted to his words spoken, or to other demonstrations made concurrently with the performance of the equivocal act. In the ordinary course of business, observation would teach us that persons meet for an object like the one in which these parties were engaged, with so full a knowledge of their common purpose, that precise declarations made at the time explanatory of the character and design of any particular act of either of them, would be somewhat extraordinary.
We are therefore of the opinion that the evidence on that point was properly admitted at the trial.
A question has been made whether the defendant was properly permitted to prove title in Joshua, Jane, and John, in order to rebut the evidence of seizin which the demandants had produced.
If the four persons, including the tenant, in whose favor the trust deed was made by Thomas Cheswell to his daughters in 1825, had a title to the land under that conveyance, then the presumption of seizin resulting in favor of the demandant from the will of Thomas and his possession on the day of his death, was rebutted. Because the will in such case would have been wholly inoperative. Bailey v. March, 2 N. H. 522; Berry v. Brown, 5 N. H. 156. These cases are directly in point to sustain the ruling of the c'ourt admitting the evidence.
Joshua Cheswell, to whose admission as a witness objection was made on the ground of interest, appears to have a greater interest to defeat the deed, since under the will which the demandant seeks to establish, he would be entitled to a greater sharp in the land than he could claim
We are therefore ”of the opinion that the rulings of the court at the trial were correct in all the particulars to which the exceptions extend, and that consequently there must be
Judgment on the verdict.
