Hall v. Dodge

38 N.H. 346 | N.H. | 1859

Sawyer, J.

The matter in controversy between the parties in the bill in chancery, was the title of the complainant in that suit, the defendant in this, under the deed from James Dodge to him. The bill sets up the seizin of James, the conveyance by him to Daniel, the loss of the deed and its unauthorized possession by James, the grantor, and prays for a decree ordering it to be re-delivered to the grantee, and for an injunction restraining the grantor from intermeddling with the land in derogation of the title under the deed. The answer of James admits the conveyance by him to the complainant, but avoids it by alleging an agreement to restore the title to the grantor, by giving up the deed to be cancelled, and a delivery of the deed to him, in pursuance of the agreement for that purpose. The merits of the controversy lay wholly in the question, whether there was such a surrender of the deed to be cancelled- as extinguished the title of the defendant in this suit under it. The whole inquiry was as to the title by virtue of thát depd. If that remained in the complainant, the grantee in the. deed, he was entitled to the relief which he sought; while, on the other hand, if that title no longer existed, by reason of his having surrendered the deed to be cancelled, the court would adjudge the fact to be so, by a decree dismissing the bill. Proofs were taken by the parties upon the general replication to the answer of James, and the whole evidence on both sides was directed to this inquiry; the defendant in that suit endeavoring to maintain the position that the title of the complainant under the deed had been extinguished, by the agreement to surrender the deed to be cancelled, and its consequent delivery to him for the purpose of re-vesting the title ; and the complainant by his proofs endeavoring to sustain the position that there had been no surrender or agreement to surrender the deed for that purpose.

This is precisely the controversy which arises in this case, upon the first ground of defence, namely: that the demandant’s devisor, James Dodge, in his lifetime conveyed the premises demanded to the defendant; the answer to which is, that the deed was surrendered up, by agreement of the parties, in the lifetime of James, to be cancelled, for' the purpose of re-vesting the title in the grantor. Upon that ground of defence, the matter in issue between the parties in this suit is identically that which was controverted, and constituted the entire substance and essence of the controversy, in the chancery suit; The matter in issue in that suit was precisely what is in issue in this, namely: the surrender of the deed to be cancelled for the purpose of re-vesting the title in the grantor. King v. Chase, 15 N. H. 9. The question was determined in that suit, by a court of competent jurisdiction, upon an examination of the merits; and by the decretal order dismissing the bill upon a hearing on the merits, the question has passed in rem judieatam. The parties to this suit were also the parties to that, and the judgment of the court, in thus dismissing the bill upon a hearing of the merits, must be held to be conclusive upon them as to the matter in issue in all other courts; certainly in those of the same jurisdiction. 2 Dan. Ch. 1209, n. 1; Story’s Eq. Pl., see. 793; Perine v. Dunn, 4 Johns. Ch. 140; 2 Story’s Eq. Jur., sec. 1523; 1 Stark. Ev. 206-209; 1 Greenl. Ev., sec. 528; Demeritt v. Lyford, 27 N. H. (7 Fost.) 541; Lamprey v. Nudd, 29 N. H. (9 Fost.) 299; Hollister v. Abbott, 31 N. H. (11 Fost.) 442.

No question arises here as to the effect of the prior judgment when not pleaded as an estoppel by the party who has opportunity to plead it. Here the plaintiff sets up the record as conclusive between him and the other party who has pleaded the general issue. The plaintiff’ can only offer it as evidence under that issue; but, when so offered, it is equally conclusive as though pleaded in bar. Chamberlain v. Carlisle, 26 N. H. (6 Fost.) 540. As to this ground of defence, the plaintiff is entitled to his verdict.

By the proceedings in the partition, the plaintiff’s one twelfth part in common of the Moor farm, for which one twelfth the suit was originally brought, has become, as to the parties to the partition, a tract in severalty, parcel of the Moor farm, and now constituting his several share in it. The claim of the plaintiff, as originally made, was for one twelfth part of the farm in common. The cause of action set forth in the writ was an alleged disseizin of the plaintiff by the defendant, not of the entire estate in the whole, or any part of the land, but of one twelfth of the estate in common through the whole land. By the amended count, the claim is for the entire estate in a pai’cel of the land, the cause of action being the disseizin of the entire estate in that parcel. Such an amendment would seem to be open to the objection that it introduces a new cause of action, and is, therefore, inadmissible. It is unnecessary, however, to decide this question, as upon another ground the amendment should not have been allowed, if in its nature it were such as to render it admissible. The plaintiff is to recover, if at all, upon his title as it was at the commencement of the suit. His title, as to the parcel since set off to him in severalty, was only to the one twelfth part of that parcel in common. If, then, his suit had originally been brought for the entire estate in that parcel, as set out in the amended count, he could have recovered but one twelfth part, because, at the time of suit brought, he shows title only to that extent under the will of James Hodge, and he would not be permitted to prove that subsequently, by the partition, he acquired title to the whole estate in that parcel. The amendment, therefore, if proper to be made, would be of no avail to the demandant, as the proceedings in the partition would give him no title to tíre tract set off to him, of which he could avail himself in this suit beyond the one twelfth part derived directly from the will. Nor can those proceedings avail the defendant, under the plea of rail disseizin, to defeat the plaintiff’s action as to the one twelfth part in common which passed by the will. As to this defendant, those proceedings are inter alios. The plaintiff shows title from James Dodge, who was once seized, and it is nothing to the defendant, under the plea of the general issue, that a third person may have better title under him by virtue of the partition to a portion of the land than the plaintiff. The plaintiff’s title is still better than his. He neither claims under the better title in a third person, nor by showing it does he disprove the demandant’s seizin. Enfield v. Permit, 8 N. H. 512; Gibson v. Bailey, 9 N. H. 168.

If the defendant had pleaded in abatement, puis darrein, an entry by the co-tenants of the demandant .under the partition, since the commencement of the suit, and possession by them as tenants of that part of the premises not included in the parcel set off to the plaintiff, this might, perhaps, have abated the writ as to. the whole premises. Waldo v. Mitchell, 24 N. H. (4 Fost.) 229. But, under the plea of nul disseizin, the only question is whether the plaintiff has made out better title than the defendant. If the verdict was taken for one twelfth part of the premises, as claimed in the original count, it may be sustained, and judgment rendered upon it; if for the entire estate in the whole or any parcel of the premises, the verdict must be set aside, and

A new trial granted.

Case Details

Case Name: Hall v. Dodge

Court Name: Supreme Court of New Hampshire

Date Published: Jul 15, 1859

Citation: 38 N.H. 346

Court Abbreviation: N.H.