Cobleigh v. Young, 15 N.H. 493

Cobleigh v. Young

15 N.H. 493 | Superior Court of New Hampshire | 1844

Parker, C. J.

The plaintiff shows an entry upon the land In question by a surveyor in 1833, in pursuance of the direction of William Atkinson, and a marking of the boundaries of the lot, and also a conveyance from Atkinson and wife to him. This would be sufficient evidence of possession under color of title, .» support an action against one who had entered subsequently wit! i-out any color of right. 2 N. H. Rep. 456, Wendell vs. Blanchard; Woods vs. Banks, [14 N. H. Rep. 101.]

It is not clear, however, that this would be sufficient against the defendant. It appears that, prior to this entry, he had occupied the lot to some extent, although it is, perhaps, not conclusively shown that his occupation was under any claim of titb. From the evidence respecting his conversation when the lot was surveyed in 1833, it might well be inferred that he made no claim to it, if there was nothing farther in the case. But there is the evidence of a deed from Howard to the defendant, as far back as 1814, and if that deed was executed at the time it bears date, any occupation of the tract by him might well be presumed to be under that conveyance, if there was nothing to rebut such a presumption.

The defendant shows no possession or color of title, farther back than this deed, which can avail him. There is nothing to *501indicate that Ms father ever entered upon the lot under any claim or pretence of title. The case merely finds that he was in possession of the adjoining lot, and cleared over the line. If, however, it had been shown that the father entered claiming title, it would not follow that the subsequent possession of the defendant had any connection with that possession, so as to continue it as an adverse possession. 3 N. H. Rep. 49, Lund vs. Parker.

Assuming then that the defendant entered in 1814, under the deed from Howard, (and waiving any question whether possession under it could he regarded as an adverse possession of the whole lot, because the deed was not recorded,) if the entry by AtMnson in 1833 was under a valid title, the defence must fail; .the adverse possession of the defendant, assuming that it existed, being thereby interrupted before it had continued for the full term of twenty years.

The question then arises whether there is sufficient evidence of title in the plaintiff’s grantors in 1888, at the time of that entry. Among the evidence produced oil the part of the plaintiff is the copy of the record of a vote, purporting to have been passed by the Proprietary, May 15, 1882, graining to Anna AtMnson all the undivided lands within the township. Lf this vote was regularly passed it is sufficient to convey the land, there being some evidence, which stands uncontradicted, tending to show that this lot had not previously been assigned or conveyed.

The other evidence on the part of the plaintiff serves to show that Josiah Little had an interest in the township, and that this interest passed to AtMnson and wife on the partition of Ms estate; but, without the vote of 1832, it may well be questioned whether this evidence would go farther than to show a title in AtMnson and wife to some undivided shares or rights in the township; and such a right would not he sufficient; to sustain this action.

The vote itself, if it is valid, recognizes the right of Anna Atkinson, as one of the heirs of Josiah Ufctle, to an interest in the townsMp, wMch is the reason for the passage of the vote, although that perhaps is not material. The objection to the vote is, that it does not appear to have been passed at any legal meeting of the proprietors, and that, in order to make it admissible for the plain*502tiff, as evidence of title, it must be shown that the meeting was duly warned, &c. It has been held in Massachusetts that this is not necessary in the case of ancient proprietary grants. 2 Mass. P. 538, Pitts vs. Temple. And we are of opinion that it is not necessary, in order to make the vote itself evidence, that it should have the credit of antiquity.

It purports to be the act of the proprietors, and it comes apparently duly certified as a true copy from their records. As against them it is good evidence, primd fade, that it was duly passed. They keep records of their proceedings, of which this is a part, and it is but a just presumption as against them that a grant, asserted by their records to have been made at a legal meeting, was made by a meeting duly warned and holden, until the contrary appears.

They ought not to require farther proof of the validity of their own acts than their own records, until they show something to impeach the correctness or validity of the record.

The .evidence offered by the plaintiff would, on this principle, be good primd fade evidence against the proprietors, if they were defending this suit, without evidence that the meeting at which they undertook to act was duly called. Omnia praesumuntur esse rite acta, donee probetur in eontrarium.

Being good against the proprietors, it would seem also to be good against any one who, claiming under them by a subsequent conveyance, would be in privity with them. He could not stand in better situation than his grantors in this respect. And, if it would be good against their grantee by a subsequent conveyance, it must be equally good against any person who shows no conveyance from them. See 4 Pick. R. 156, Davis vs. Mason.

The proprietary was, of course, once well seized of this land in fee; and as there is no evidence to show that any division or conveyance was made of it afterwards, until the vote granting all the residue of their lands to Anna Atkinson, the presumption is that the proprietors continued .to own up to that time. This is in accordance with the well known maxim of the law, that a state of things being shown to exist is presumed to continue until evidence of the contrary is shown. 1 Greenl. Ev., § 41.

*503In this case there is no evidence tending to invalidate that presumption. The deed from Howard to the defendant, in 1814, without more, cannot raise a presumption of a grant to him by the proprietary. It does not appear that, prior to that time, Howard had any color of title, or any possession, to warrant such a conveyance. Had the defendant entered under that deed in good faith, claiming the land, and remained in possession for the term of twenty years without interruption, that might have raised a presumption of a grant from the proprietary to Howard or to himself.

No such presumption existing, this case is in fact settled by that of Atkinson vs. Bemis, 11 N. H. Rep. 44. The defendant in that case had a possession which he could sustain against any person who did not show a better title. And the defendant in this, as against anj primd facie evidence of title, stands in no better situation than a wrong doer. The mere fact of an entry, under color of a conveyance to him, from one who does not appear to have had either a title or possession which would furnish a decent pretext for making it, cannot place him in any better situation in this respect than he would have been in, had he entered without a deed.

We have no doubt that it was competent for the defendant to impeach the correctness of this record, or to show that the meeting at which it was passed was not organized in such a manner as to render its acts of any validity. But standing on the rec'ords uncontradicted, and appearing thus to be the act of the proprietary, the defendant offered nothing having a tendency to impeach it. On the contrary, as we have seen, in 1833, he seems to have spoken as if he understood that Atkinson had title, and there is no evidence that he had any other except that of Little, which was the foundation of this.

Whether one in possession by some informal title, derived from the proprietary previous to 1832, could be ousted without farther evidence that the meeting was legally warned, is a question which we have as yet had no occasion to settle.

Judgment for the plaintiff.