Cilley v. Bartlett

19 N.H. 312 | Superior Court of New Hampshire | 1849

Gilchrist, C. J.

In this case, the court instructed the jury that if the facts shown by the defendant led the jury to believe that the original purchase, by Jacob Cilley, was for the “ use and benefit ” of the defendant, and the deed was made in Cilley’s name, for some purpose of convenience which cannot now be explained, it would be a fraud in the plaintiff to set up the legal title against the “ equitable right ” of the defendant.

This charge was erroneous, because the facts stated in the case do not justify it. There is no evidence in the case that the original purchase by Jacob Cilley was for the ££ use and benefit ” of the tenant, except that it was purchased by him out of charity for the tenant, and for the purpose of doing him a kindness. He permitted the tenant to remain upon the land without paying any rent for it, thus generously giving him the use of it. The case is entirely different from the case of Sumner v. Stevens, 6 Met. 337, cited by the counsel for the tenant. There the tenant’s father made a parol gift to him of the land, and a subsequent possession for twenty years was held to be proof of the intent of the parties that the tenant should occupy the land as its owner. In the present case, there is not the slightest evidence that Jacob Cilley made a gift of the land to the tenant, and although mention is made of the “ equitable right ” of the tenant, the whole case shows that the tenant had no equitable rights whatever, but that he, an intemperate pauper, lived there exclusively as a pensioner upon the bounty of his uncle. The tenant had no equitable right unless the recipient of favors, bestowed for a long period, acquires an equitable right to their continuance for an indefinite term. There is no evidence in the case tending to show that Cilley had any <£ purpose of convenience ” to subserve. It probably was not very inconvenient for him to purchase the land, and it was extremely convenient for the tenant to reside upon it without paying any rent. Other than this, there is not the slightest pretence that the land was bought for any purpose of convenience, but the evidence is overwhelming that the purchase was made as an act of kindness to the tenant. The idea that there could be any fraud in the plaintiff’, after the decease of Jacob Cilley, in setting up the legal title, strikes us as being in derogation of every principle of moral and legal right. The tenant went there as a beneficiary, with the assent of Jacob Cilley. He always remained in possession with the assent of Cilley. There is nothing which goes to show that the possession was taken against the consent of the owner, but all the circumstances prove that the possession was not adverse, and it is settled that the possession of land, by the consent of the true owner, is not adverse possession. Under certain circumstances, the length of time during which the possession has been enjoyed may be evidence that it was adverse. Lund v. Parker, 3 N. H. Rep. 49; Bailey v. Carleton, 12 N. H. Rep. 9. But all the circumstances here go to show that the possession was permissive, and not adverse. The repeated declarations of the tenant that he did not own the land, his acknowledgments of the kindness of Jacob Cilley, in permitting him to live there, and his declarations that he had no property whatever, although they do not estop him from proving a title, clearly show that he never supposed that he had any claim to the land.

In the second place, the court instructed the jury that if they were satisfied that there was a purchase of and payment for this property, by the tenant, they could presume that a deed once existed which is now lost. This instruction authorizes the jury to consider the evidence as tending to prove, among other things, that the tenant paid for the land. It is erroneous, because the evidence does not prove in the remotest degree, nor has it the slightest bearing upon the question of a purchase by the tenant. All the evidence is consistent upon one point, that the tenant occupied the premises with no other title than that derived from the consent of Jacob Cilley, which was given him as a matter of kindness.

The court should have instructed the jury according to the motion made by the counsel for the demandant, that if they believed, as the plaintiff’s evidence tended to show, that the defendant, from the time he moved upon the demanded premises till after the death of Jacob Cilley, always acknowledged that Cilley was the owner of the premises, and that he was there by his permission, then the plaintiff was entitled to recover, notwithstanding any acts the defendants had done, or caused to be done, upon the premises during that time.

If the defendant invariably acknowledged that Cilley owned the premises, and that he was there by his permission, such acknowledgments most decisively control and modify any acts the tenant might have done upon the premises during his occupation. A person who is in possession of land, and who is thereby prima facie its owner, may explain that possession by declarations showing its character. Willies v. Farley, 3 C. & P. 395; Smith v. Smith, 3 Bing. N. C. 29. In the case of Doe v. Pettett, 5 B. & A. 223, it was held that the declarations of a widow, in possession of premises, that she held them for her life, and that, after her death, they would go to the heirs of her husband, are admissible evidence to negative the fact of her having had twenty years’ adverse possession. In the case of Doe v. Harbrough, 1 Nev. & Man. 422, it was held that declarations, made by a widow in possession, that A.’s son would have the estate after her death, are competent evidence that the property did not belong to her. In the case of Doe v. Coulthred, 7 Ad. & E. 235, it was held that where a person who was once in the receipt of the rents and profits of land, declared that he held by the permission of the lessor, the plaintiff’s ancestor, it was evidence that the declarant did not own the property. Doe v. Jauncey, 8 C. & P. 99. A declaration by a person in possession of premises against his interest, is competent. Doe v. Wainwright, 8 Ad. & E. 691. Ivas v. Finch, 1 Taun. 141. Occupation being presumptive evidence of a seizin in fee, any declaration claiming a less estate is against the party’s interest, and a person in possession of land is presumed to be owner in fee, and his declaration is admissible, when it shows that he was only tenant for life or years. Crease v. Barrett, 1 C. M. & R. 931. In Peaceable v. Watson, 4 Taun. 16, it is said by Mansfield, C. J., “ possession is prima facie evidence of seizin in fee simple. The declaration of the possessor that he is tenant to another, makes most strongly, therefore, against his own interest.” In the present case, the declarations of the tenant qualified and explained his acts, and showed that whatever he did upon the land was not done as the owner of it. The jury should have been instructed that if they believed the declarations and acknowledgements made by the tenant, the demandant was entitled to a verdict.

The case finds that the defendant, in the presence and hearing of one or more of the jury, asserted, in the most positive terms, that the testimony of one of the most material witnesses for the demandant was utterly and absolutely false. The tenant swears that he did not know any one of the jury was present at the time.

Whether he knew this fact or not, is not a matter that can be readily proved. But there will be no security for the proper administration of justice, if a party, while his ease is on trial, can be permitted to make statements denouncing his opponent’s witnesses, during the adjournment, after the jury have separated, whether he is aware of the presence of a juror or not. If he will conduct in this manner, he must take the risk of the consequences upon himself. The presumption is, that when jurors hear such statements they are more or less affected by them. The State v. Hascall, 6 N. H. Rep. 352. And as it is necessary that such conduct should be discountenanced, the judgment of the court is, that for this, as well as the other causes we have stated, the demandant is entitled to a new trial.

Verdict set aside.