28 N.H. 547 | Superior Court of New Hampshire | 1854
Upon the trial of this action in the common pleas, the demandant showed no legal title to the lot in question. He attempted to trace his title from Mary Poor, but he showed no title in her, and no claim of title, except so far as the payment of taxes on the lot might, in connection with other testimony, be evidence of claim. But even the payment of taxes by her upon this lot was not proved. There is a want of directness in the evidence upon this point. It does not fix the payment by her upon this lot. Neither was there any entry of possession by her shown, she having died prior to July, 1830; and in her will, disposing of her property, no mention of the lot'is made evincing that she claimed it. The attempt, then, to show a legal title in Mary Poor, as the foundation of the demandant’s right to the lot entirely failed.
The entry by Cilley, in 1832, upon the other lots in the town, but not upon this lot, was not sufficient to commence a title by possession. This lot was in a different range from that of the others, and, so far as appears from the case
The genera] rule is undoubtedly true, that an entry under color of title is presumed to be according to the extent of the title, and that a constructive possession follows the entry to the limits of the land contained in the title. Copp v. Neal, 7 N. H. Rep, 275; Jackson v. Wheat, 18 Johns. 40 ; Breck v. Young, 11 N. H. Rep. 485. And the authorities before cited generally sustain the same position.
But in Bailey v. Carlton, it was held that where a party having a deed which embraces land to which his grantor had good title and other land to which he had no right, enters into and possesses that portion of the land which his grantor owned, but makes no entry into that part which he-could not lawfully convey, he has no adverse possession of' the latter. And an examination of the remarks, upon this point, of the very learned chief justice, who delivered the • opinion in that case, would seem to show that, even admitting that Mrs. Poor had color of title to all of the lots named, it would be very questionable whether an entry upon a lot in one range could be construed to extend to a lot in another range, unless it should be shown that the two were adjoining lots.
The fact that Cilley may have made the entry which he did as agent for the heirs of Mrs. Poor, and that heirship will, in some instances, give color of title even when the ancestor has none, cannot aid the demandant, because, in this case, no possession, right, or color of right to the lot is •
The only title, then, which was shown by the demandant was one of possession, which commenced in 1848; and the court were right when they instructed the jury that neither party had proved any title but by possession, and that in regard to such titles the earlier must prevail.
The issue between the parties being narrowed down to one of possession merely, we think the proposition of the demandant to prove that Hall and Dustin, while in the occupation of a portion of the lot, made application to purchase the lot, taken in connection with the evidence that when Hall and Dustin sold out to Samuel Wallace, they told him they had no title to the lot, and that the lot was called the Poor lot by Hall and Dustin and Wallace, ought to have been received. It had some tendency to prove that Hall and Dustin were in under Mrs. Poor, and that Wallace, purchasing of them, also held under her. The evidence may have been slight, but we think it should have been admitted. It was, also, a circumstance which the jury might well consider, in connection with others, in coming to the conclusion whether Wallace, by taking the profits of the land simply, was asserting a title to the same. It had a tendency to explain his possession, and to rebut the inference of claim by him, arising out of the fact of his taking the crops and income of the land.
For the rejection of this evidence, the verdict must be set aside and a
New trial granted.