Colby v. Kenniston

4 N.H. 262 | Superior Court of New Hampshire | 1827

Richardson, C. J.

We are of opinion that the tenant in this case, showed sufficient grounds to entitle him to give parol evidence of the contents of the deed from Cil-ley. He showed that the deed was not recorded, and that the grantee could not be found. Indeed, he showed that he had done every thing that he could do, to obtain the deed. He brought himself clearly within the broad and liberal rule which now prevails on this subject. 18 Johns. 60, Jackson v. Root; 1 Holt, 601, Humble v. Hunt; Peake’s Ev. appendix, 184, Keeling v. Hall; 3 B. & B. 285, Champion v. Terry; 16 Johns. 193, Jackson v. Frier; 2 Caine’s Rep. 363, Jackson v. Jewett; Phillips Ev. 167; 2 Taunt. 237, Rhind v. Wilkinson; 1 Taunt. 507, Garmons v. Swift; 1 caine’s Cases, XXVII, Livingston v. Rogers; 1 Pick. 114, Shumway v. Holbrook.

We are also of opinion that the directions, which were given to the jury in this case, were correct.

He, who takes a conveyance of land, knowing that another person has a previous conveyance of the same land from the same person by an unrecorded deed, is guilty of a fraud and cannot hold the land. And it is well settled that if the first purchaser is in the open visible possession of the land, this is sufficient evidence of notice, that he has a deed, to all the world. Because it is not to be supposed that any man would purchase land of óne man, while another was in the open visible possession, without due enquiry as to the title of him who had the possession. These principles have long been considered as settled in this state. 2 Mass. Rep. 506, Norcross v. Widgery; 6 ditto, 487, Davis v. Blunt; 14 ditto, 296; Connecticut v. Bradish; 16 ditto 406, Trull v. Bigelow; 10 ditto, 60, Prescott v. Heard; 1 Pick. 164, Priest v. Smith; 4 Mass. Rep. 637, Farnsworth v. Childs.

Judgment on the verdict.