21 N.H. 409 | Superior Court of New Hampshire | 1850
The demandant, Esther Eorsaith, seeks to establish her claim to the premises in dispute as child and heir of Tolford Eorsaith. She endeavors to trace her title from the original charter of the town of Chester, which formerly embraced the territory in controversy, down through various channels to her father. The title being unaccompanied by any acts of possession on the part of those from whom the property descends, is a mere legal one ; and its validity, therefore, depends upon the perfectness with which the chain of title is made out. No counter title is put in on the part of the tenant, and no adverse possession attempted to be shown. But the tenant relies upon the. failure of the demandant to show a legal right to the premises
The first exception relates to the competency of the evidence introduced to show the charter of the town of Chester. A copy of the record of said charter, which purports to bear date May 8th, 1722, from the office of the Secretary of State, is offered. On this copy were the following certificates:1 — ■ “ A true copy. Richard Waldron, Secretary. The above copy was entered and recorded the 10th day of March, 1746 - 47, per Theodore Atkinson, Secretary.” And the present Secretary of State certifies the same as a true copy of the original as recorded in his office. It is then proved that there are no original charters in the office of the Secretary of State, and no other record there of the 'charter of Chester. It is also proved that no original charter is to be found in the office of the town-clerk of Chester. Upon these facts the question is raised as to the admissibility of the copy as secondary evidence.
By the laws in force at the time of the issuing of this charter, all grants by the royal authority were required to be of record, and no patent or charter could be rightfully issued until a record of it had been made. The record being made, the charter or patent was then issued to the grantees. The original record of the charter would, therefore,be among the provincial papers, and the charter that was issued would be in the hands of the grantees. Consequently, the proper place to look for the record would be the Secretary’s office ; and to find the original charter itself as issued, search should be made among the records and papers of the proprietary, wherever they are properly kept.
It may perhaps be said to be matter of general history, known to all at least who take an interest in such affairs, that in the early grants of townships, both in this province and in that of Massachusetts, the grant of the land and of the franchises of a town were made to the same persons by the same charter, and the powers of the grantees over their land were exercised by therfi in their character of a town corporation, and not as a proprietary distinct from the town. The very early records of our ancient towns show that the entire management of the business
But it has already been suggested, that before any charter could be rightfully issued it had to be recorded; and hence the propriety of producing a copy from the original record itself in the secretary’s office. It appears, however, that no original charters are to be found in his custody and no other record of the charter of Chester than that from which this copy was taken. This in all probability is to be accounted for from the fact,'that in May, 1736, the house of Mi*. Secretary Waldron, at Portsmouth Plains, was destroyed by fire, and in it most of the records of the Province. 5 N. H. His. Soc. Collections, 22. This may be regarded as matter of public history, affecting the whole people, and therefore a subject which a court judicially takes notice of. 1 Greenl. Ev. § 5; Commonwealth v. Alburger, 1 Whart. Rep. 469; Jackson v. Martin, 12 Wend. 328. These records being destroyed we may well presume that the proper authorities had recourse to the best means in their power to replace them, so far as it could be done. And although we can
But it is unnecessary to go more fully into this examination, inasmuch as the record of this charter, entered in the first volume of the records of the town, was competent to prove the fact desired. The town-clerk was a public recording officer, acting under an oath of office, and as such it was his duty to record this charter. The record was thus an official entry, and, upon the loss of the original, a copy of the same was clearly admissible as secondary evidence, if not indeed upon the more general principle of being an official paper. The case of Winn et als. v. Patterson, above cited, is directly in point; only the facts in that case do not appear to us so strong as in the present one. Thei’e, a power of attorney to convey lands in one county in the State of Georgia, was recorded in another, there being no express statute in regard to the matter ; a copy of the record was presented, and held admissible. The principle as gathered from the authorities, is this, that wherever documents or books of a public nature would of themselves be evidence, if produced, their contents may be proved by immediate copies duly verified. Birt v. Barlow, 1 Doug. Rep. 171; Lynch v. Clarke, 3 Salk. 154; Saxton v. Nimms, 14 Mass. 320; 1 Gresley Ev. 115; 1 Greenl. Ev. § 484; 1 Phil. Ev. 424; Jackson v. King, 5 Cowen, 238; McCarty v. Sherman, 3 Johns. 429; Walsh v. Crawford, 14 Serg. & Rawle, 440; Catlett v. Pacific Ins. Co. 1 Wend. 578; Peck v. Farrington, 9 Wend. 44.
The next exception, is to the deed of Jonathan Kimball, one of the grantees in the charter, to his four sons. The exception is, “ that it did not appear that there were any witnesses to the deed.” At the left hand side of the deed, below the body of the same, two names appear, not mentioned in the deed, and
We should be slow to break in upon any of the usual and practised forms in so important a matter as the transfer of real estate, but we ought not to be so wedded to forms, however time-honored they may be, as to permit them to prevent substantial justice from being done. The words of attestation form no essential part of the contract between the parties. They partake in no sense of any condition or covenant, and are no part of the words of conveyance ; nor are they to be found in any statutory form, so as to be regarded a part of the law, and therefore essential. The fact that they are upon the deed, does not dispense with the necessity of calling the witnesses to prove the deed; and if fictitious names should be placed under them, or the witnesses deny their signatures, the deed fails of being proved. The words then add nothing to the proof. They dispense with
But however this may be, the suggestion of the plaintiff’s counsel, that no subscribing witnesses were at that time required by the provincial laws then in force, is a perfect answer to this exception. The act for recording deeds and conveyances then in force provides, “ that henceforth all deeds or conveyances of any houses or lands within this province, signed and sealed by the party or parties granting the same, having good and lawful right or authority thereto, and acknowledged by such grantor or grantors before a justice of the peace, and recorded at length in the records of this province where such houses and lands do lie, shall be valid to pass the same, without any other act or ceremony in the law whatever.” Laws, Ed. of 1771, page 19.
The third exception taken, is to the copies of the deeds from Jonathan Kimball and others to Benjamin Kimball, dated July, 1737, and from Benjamin Kimball to James Whitten, dated August, 1837. These deeds come from the registry of the county of Rockingham, but they purport to have been acknowledged before a justice of the peace of the province of Massachusetts, and the
It is believed to have been the invariable practice in this State, when the official character of an officer resident in an adjoining State has been called in question, to require but slight evidence to substantiate the fact, wherever the official character is not intimately connected with the merits of the subject-matter in controversy. Thus, in the taking of depositions by a justice of the
The precise ground of exception to the will of John McMurphy is not stated. By this will, said McMurphy desired “all the residue of his real estate, to be equally divided between John Caldwell, John Tolford, William Tolford, and Matthew Patten, or their children by his daughters.” The will contains no words of inheritance, but that is not necessary to vest a fee. If the will contain apt words to express the intention of the testator, and to show that a fee was intended to be given, that is sufficient. A devise of all the testator’s estate carries a fee. Fogg v. Clark, 1 N. H. Rep. 163; McAffee v. Gilmore, 4 N. H. Rep. 391; Leavitt v. Wooster, 14 N. H. Rep. 550. Upon these authorities, there can be no doubt that a fee passed by the terms used in this will. The only difficulty that we discover, is the alternative manner in which the devise is expressed. The use of the word or, raises some uncertainty as to the proper construction that should be given to the devise, though we apprehend that it was the intention of the testator to give the property to his four
But there is no evidence in the case, that either of the devisees under- whom the demandant claims, ever had children; and the deeds of Patten and William Tolford convey an estate in fee, only defeasible by those who can establish a claim under such children. For the purposes of this verdict, therefore, the demand-ant stands well enough upon this branch of the case.
A further exception is taken, that copies of the deeds constituting the demandant’s title, are inadmissible till the deed from Jonathan Forsaith to Tolford Forsaith, the demandant’s ancestor, shall be proved. This is the last deed offered, and a copy of it is introduced instead of the original.
We have seen in the discussion of this case that office copies are properly admissible in making out a chain of title, except the immediate deed under which the party claims. - The deed directly to himself must be proved. Pollard v. Melvin, 10 N. H. Rep. 554; Loomis et al. v. Bedel, 11 N. H. Rep. 74; Homer v. Cilley, 14 N. H. Rep. 85. This copy we think admissible upon two grounds. It is not the last step in the plaintiff’s chain of title, and hence not objectionable: and if it were the last step, the non-production of the original is accounted for, and it can be admitted as secondary evidence.
The demandant is not a party to this deed. She does not claim as the grantee of Jonathan Forsaith. If she can rightfully hold the premises, it is as heir of Tolford Forsaith. The last link in her chain of title, therefore, is her heirship; and this she proves. But the destruction of the house occupied by Tolford Forsaith, together with most of his furniture, taken in connection with the fact of his departure to parts unknown, is sufficient to raise the presumption of the loss of the deed; or, at least, of the inability of the demandant to produce it. A copy, therefore, would be admissible as secondary evidence.
An examination of the several exceptions to the demandant’s right of recovery, has brought us to the conclusion that they cannot be sustained; and that, consequently, there must be
Judgment on the verdict.