Lyford v. Thurston

16 N.H. 399 | Superior Court of New Hampshire | 1844

Woods, J.

Several questions arise in this case. 1. Was the office copy of the deed of George W. Jackson to Sally Moulton, of the date of the 2d of September 1836, rightly admitted ?

George W. Jackson was seized of the land in controversy, as admitted by both parties, and the plaintiff claims it through Sally Moulton as trustee of James Jackson. The conveyance to her was clearly therefore in the chain of the title which the plaintiff claims, and so upon a well settled rule of law the copy of the deed was properly admitted in evidence.

2. The next question is, whether the copy of the deed of April 23, 1838 from George W. Jackson to Sally Moulton — the same parties — was properly admitted ?

It was not in the chain of the plaintiff’s title, for he does not claim the half conveyed by this deed. But the claim of the tenant is made from George W. Jackson through Sally Moulton, as his immediate grantor. So it appears upon the whole case ; the tenant claiming by virtue of a mortgage of one half of the farm, by a deed of April 23, 1838, and also by an absoluto deed of the whole dated March 26, 1840.

Now although the deed, of which a copy was offered, was not in the chain of the demandant’s title, still it was in the chain of the title which the tenant claimed, and so was properly admitted. The principle is the same which governs the admission of the copy in this case, as in the case of a copy in the chain of the title of the party offering the evidence.

At the point of time when the copy was offered it was not, perhaps, competent proof: but by the tenant’s offer of the subsequent deed to himself of the whole lot, it clearly became competent. It then appeared to be in the chain of title by which the defendant claimed, and so the objection that existed, if any did before exist to its use, was removed.

A verdict will not be set aside for the reason that evidence, at the time it was admitted, was incompetent, provided it became competent by the subsequent introduction of evidence, which, if previously introduced, would have paved a direct way for its introduction. That which was subject to an objection at the time when it was introduced, became relieved from the objection interposed by the subsequent act of the objector himself.

This principle has been decided and adopted in several cases, and is believed to be sound and salutary in practice. Wiggin v. Damrell, 4 N. H. 74.

3. The demandant claims the land by virtue of the levy of an execution thereon, as the property of James Jackson. He contends that notwithstanding the apparent title was in the tenant to the whole tract of land, or farm, yet that, as to one half of the farm, he was at most only a trustee of the land for the use of James Jackson ; that Sally Moulton took the title from George W. Jackson in trust for James, as to one half of the lot, and that the-same was conveyed to the tenant without consideration and so in Ms hands at the time of the levy was a trust estate for James Jackson, and liable for his debts; that having taken a conveyance of the land without paying any consideration for it, he took it charged with all the trusts with which it stood incumbered in the hands of his grantor.

Did Sally Moulton take the title as to one half the land, in trust for James Jackson ?

The trust, if it existed, does not appear to have been evidenced by any deed of trust or by any writing disclosing it. If it existed, it was a resulting trust — a trust by implication of law arising from the fact that James Jackson had purchased and paid for the land prior to or at the date of the conveyance to Sally Moulton.

And it would seem to be a well settled rule of law, that where a person purchases land and pays the consideration money and takes a conveyance in the name of another person, the trust of the legal estate so conveyed, whether freehold or leasehold, results to the person who so makes the purchase and advances the purchase money. The existence of such trust may be proved by parol, and without any writing whatever to manifest it. Scoby v. Blanchard, 3 N. H. 170; Pritchard v. Brown, 4 do. 397; Sugden’s Law of Vendors 416, 417; 2 Story’s Eq. 443, 444.

The question important to be considered in this branch of the case is, whether it sufficiently appears that James Jackson purchased and paid for the land so conveyed to Sally Moulton. That he made a contract of purchase with George "W". Jackson is entirely clear, and that the consideration paid for it so far as any was paid, moved from James to George 'W. Jackson, and not from Sally Moulton, is equally clear. She certainly paid nothing.

That some part of the stipulated consideration was performed is not open to doubt; and whether the half of the stock and tools passed upon the conveyance of the land or not, and it is by no means clear that they did not, although it is said that James made no conveyance of them, still a consideration was paid, such as was satisfactory to George. James had been upon the farm and made improvements; and it is found by the case, that the son proposed to convey to his father according to the previous contract; but it appears that the deed was made to Sally Moulton by an agreement of the parties, and the object expressed was, that the land might hot be taken by the creditors of James.

Now we think that this is to be regarded as a purchase and payment by James Jackson, and not by Sally Moulton ; and superadded to that, is the fact of the express fraud evinced by the declared purpose of the parties, to keep the property in question from the creditors of James.

We regard Sally as the mere trustee of James, of the legal estate in one half the lot conveyed by George to her.

4. The tenant derives his title from Sally Moulton. By the deed of April 28, 1888, the tenant acquired a good mortgage title to one half of the lot. She at that time had the whole legal title, one half, as we have seen, in trust for James Jackson, and the other half under the deed from George of the same date with the mortgage.

The tenant claims also the other half of the lot, as well as the equity of redemption of the first half conveyed to him by virtue of a deed of March 26, 1840. It does not appear that he knew of the trust attaching to the moiety first conveyed to his grantor. His deed purports to be upon a valuable consideration, and if the case stopped here, the title of the tenant would be perfect. Having found the title apparently in Sally Moulton, and not in James Jackson at the date of his deed, the deed made a good primd facie title to the tenant, and is to be regarded as presumptively upon good consideration, as expressed in. its terms. The burden of proof therefore was cast upon the plaintiff to rebut the presumption in favor of the tenant.

5. To do this he offered a subscribing witness to the deed, to show a want of consideration for the deed of 1840, who testified that lie did' not know the bargain upon which, the deed was given, and that he did not see any consideration paid or any security given by the tenant to the grantor. This evidence was clearly competent and sufficient to the jury, and to justify the finding of a want of consideration for the deed; and we think it was sufficient to overcome the mere primd facie evidence furnished by the face of the deed itself, and the acknowledgment of the receipt of the sum of money there indicated as the consideration, and from the course of the trial as indicated by the case, we infer that the tenant had no desire to trouble the jury with the finding of that fact.

Upon the case then, the deed of March 1840, is to be taken to have been without consideration. The land then is found in the hands of the tenant, charged with the trust in the same manner that it would stand charged if it still remained in Sally Moulton who received it from George.

The land then being found to be held in trust for James Jackson, if the levy of the demandant has been well made, the title was by its operation vested in the demand-ant to the land set off to him under it. The interest of a cestui que trust will.pass by the extent of an execution upon the land as his property. Scoby v. Blanchard, 3 N. H. 170; Pritchard v. Brown, 4 do. 397, before cited.

6. But it is said by the tenant, that the demandant has shown himself at most to be a tenant in common with him, and so no disseizin is shown. It is no doubt true that in general the possession of one tenant in common is also the possession of his co-tenant, and is perfectly consistent with the seizin of such co-tenant. But one tenant in common may for all that disseize his fellow ; and such seems to have been the case here; since by his plea of ml disseizin, he confesses himself in claiming the freehold. The demandant may therefore well recover, upon proving a right to the possession of an undivided part of the land.

7. It is however said, that the levy is void, by reason that the land on which it is made is not described in the return by metes and bounds as required by the words of the statute.

The land is described in the return as “ a tract of land shown to us as the estate of the within named James Jackson, lying in Piermont in said county of Grafton, being the 160 acre lot No. 1, in the fourth division in said Piermont, excepting fifty acres of the southerly part of said lot, and being the farm on which said James Jackson now lives, with the buildings thereon.”

The exception named in the levy is in effect, fifty acres of land taken from the southerly end of the lot by a line running parallel with the southerly boundary line of the lot. Such we think would be the proper construction to be given a like exception in a deed, and should prevail in like manner in a description in a levy.

The boundaries would then be well ascertained. The tract on which the levy is made is bounded on three sides by the lines of the lot, and on the other side by such a parallel line as has been mentioned. Metes result from boundaries; and when the latter are definitely fixed, the former are sufficiently ascertained; and the land may in such cases, we think, be said to be set off' “ by metes and bounds.” Buck v. Hardy, 6 Greenl. 165.

The result is, the demandant is entitled to

Judgment on the verdict.