19 N.H. 448 | Superior Court of New Hampshire | 1849
In examining, the question which the case presents, we are to consider the plaintiff’s title as commencing with the entry of A. Dickinson, in 1815, under a deed of Mrs. Capron, who has undertaken in the lifetime of her husband, and in her own name, to make a conveyance of the premises to the party so entering. The possession thus acquired was continued, without any interruption, through a period of eighteen years. An action was then brought by Nathan Capron, the husband, which was compromised. By this compromise, a judgment was entered for the demandant, and a conveyance made to him, of all the Dickinson title. This transaction took place in 1837, more than twenty years after the entry of A. Dickinson.
The ease does not require us to decide whether these facts are sufficient, in any view whatever, to constitute a perfect title in Nathan Capron; but presents a question merely upon the instructions given by the court upon the
It must be conceded, in the first place, that the deed of Mrs. Capron, under which the possession of Dickinson commenced, was in law a mere nullity, as respects its power to transfer any title, interest or possession. It was merely void, and required neither entry, plea, or other act, on the part of the party executing it, or others, whose rights might be concluded by its terms, to avoid it. The entry under it was a mere trespass against the rightful owners of the soil, including her also who had assumed, by the act in question, to part with it.
Such was the character of the deed, considered as a conveyance. Its effect, in extending or limiting by construction the occupation of the parties in possession under it, is a point which does not arise. But the deed has undoubtedly importance and signifieancy, as indicating the nature of the estate claimed by Dickinson, on taking possession of the land; in showing that he claimed an indefeasible fee simple, and was not in recognizing a paramount title.
His entry, therefore, and possession being tortious, and his claim a fee simple, it would hardly seem consistent to say that he was a tenant at will to any body, or that he acknowledged any superior title.
Such recognition does not seem to result from his having taken a deed from Mrs. Capron. It was held in Owen v. Bartholomew, 9 Pick. 520, that negotiating with a party for the purchase of land did not estop the plaintiff from after-wards claiming it as his own. Nor is this case that of a tenant, who, having taken a lease, is estopped to dispute the estate of his landlord, so far as it is consistent with the rights acquired under the lease.
On the contrary, the claim of Dickinson was from the outset in direct hostility to any interest of Mrs. Capron, or others, in the land. The notion of any tenancy under her was totally excluded by the nature of his claim. In short,
For misdirection of the court below, in this particular, the verdict must be set aside, and it is, therefore, unnecessary to inquire whether there was or was not error in refusing to grant the defendant’s motion for specific instructions as to the connection of Dickinson’s possession with the subsequent possession of Capron, and as to the effect of the suit at law in breaking the continuity of possession.
New trial granted.