41 N.H. 529 | N.H. | 1860
It is not necessary to settle tbe question whether tbe magistrate was disqualified, by bis relationship to tbe plaintiff' for taking tbe deposition of William Graham, although tbe court would hesitate long before they would hold such relationship not to be a disqualification. But however this may be, we think the objection was waived by the omission to make it at the caption. Whitcher v. Whitcher, 11 N. H. 348; Warren v. Glynn, 37 N. H. 340. Nor is the result changed by the fact, that the objection was known only to the party, and not to his counsel. In Rollins v. Ames, 2 N. H. 349, it was held that an objection to a juror would be regarded as waived, unless the party and his counsel showed that they were ignorant of the cause of challenge, at the time of the trial; and so in State v. Rand, 33 N. H. 216, and Warren v. Glynn, before cited. In these cases, no distinction is made between knowledge of the objection in the party or in the counsel, and we see no ground for any.
The objection to the answer of Graham is not insisted on in the argument, nor do we see any ground for serious
To prove title, the plaintiff' offered the deeds of John "Webster to Joseph Blanchard, and cf said Blanchard to the Amesbury Nail Factory Company, of the land in dispute, as was claimed, and both with covenants of warranty ; and then deeds of quitclaim, conveying the same land from this company, through the witness, Graham, and others, to the demandant; and he also proved an actual entry by Graham under the deed to him, in 1832 or 1833, and also in 1856.
These conveyances, although that to the plaintiff was only a quitclaim deed, transmitted to him all the title of Blanchard and the Amesbury Nail Company, who held under deeds of warranty, and also the seizin of Graham, acquired by actual entry, and gave him color of title. The entry of Graham upon a part of the entire tract, gave him seizin of the whole; and that, being transmitted to the plaintiff, is sufficient to enable him to sustain the action against one having no better title.
We think, however, that the defendants should have been allowed to prove that the land in dispute was not included in the deeds, for in that case the right of the plaintiff might have been limited to what he actually occupied; and so they should have been allowed to introduce evidence as to the manner of Graham’s occupation, if designed to limit its extent, or show it to be without claim of title. What was its purpose is not reported, but the ruling of the court excluded it, upon the ground that the plaintiff, having shown a prima facie title, the defendants must show title in themselves, in order to maintain their defence; and having jointly pleaded nul disseizin, they must show themselves j oint tenants of the freehold. T bis ruling, we think, was erroneous, and the evidence ought to have been received.
A new trial granted.
