Francestown v. Deering

41 N.H. 438 | N.H. | 1860

Bellows, J.

In regard to the settlement of Benjamin Brown in Deering, the case makes no question of his residence there the proper length of time, his having real estate of the value of $150, nor of his paying all taxes duly assessed on him and his estate for four years in succession. These facts, then, being assumed, it is no answer to say that there was no proof, or insufficient proof, that the taxes were duly and legally assessed; because, to gain a settlement in that mode, it is unnecessary to show that he was taxed at all, the settlement being the result of residence, possession of the property, and the payment of all taxes that are duly assessed. N. H. Laws (Ed. 1810) 362, sec. 4; Law of January 1, 1796; Rochester v. Chester, 3 N. H. 349; Burton v. Wakefield, 4 N. H. 48. The competency of the records, then, to show a legal assessment of Benjamin Brown and his estate, becomes wholly immaterial. If the law were otherwise, and an actual taxation was necessary, as in the case of a residence and paying taxes upon the poll seven years in succession, the court would hesitate to hold that where there was an actual taxation and payment, both parties assuming it to be legal, the settlement would fail on account of some informality in the proceedings. But it is not necessary to settle this question.

In regard to a settlement of David Brown in Brances-town, the only question raised by the case is, whether he had a resulting trust in the real estate beyond the amount paid by him before and at the time of the conveyance to his wife. The verdict being taken by consent, every thing must be taken as found for the plaintiff that could be legally so found upon the evidence. "Was the ruling in question, then, correct?

On this point the evidence was, that on December 26, 1849, David Brown conveyed to one Bixby a house and barn, which he had before erected on Bixby’s land, and had also mortgaged to him; at the same time Bixby conveyed the-land and buildings to Hannah, the wife of said David, who thereupon gave her note for the price of the land, and the balance due on the debt for which the buildings were mortgaged ; and, to,secure the payment of her note, the said Hannah mortgaged both land and buildings to Bixby. It appeared, also, that this note was afterward paid, but whether with the money of the wife, or the husband, was, upon the evidence, uncertain. However that might be, we think the ruling of the court was correct, and that no trust would arise, by implication, to the husband, from payments made after the time of the purchase. And this is the necessary result of the principle upon which such trusts arise; namely, that the money of the real and not the nominal purchaser formed the consideration for the conveyance, and was thus converted into land. If not paid at the time, the title would become Vested in the nominal grantee, and a subsequent advance to the purchaser would not, by relation, give to the original purchase the character of a trust. 4 Kent Com. 305 and notes; Rogers v. Murray, 3 Paige Ch. 398; Botsford v. Burr, 2 Johns. Ch. 408; Steere v. Steere, 5 Johns. Ch. 18; Brooks v. Fowle, 14 N. H. 260; Page v. Page, 8.N. H. 187. There must, therefore, be'

Judgment on the verdict.