Miles v. Miles

32 N.H. 147 | N.H. | 1855

Eastman, J.

From an examination of the bill and answers it will be perceived that the defendant, Nancy Miles, and her sister, Betsey Meserve, have severally life estates in the premises, subject to the dower of their mother, Lydia Miles; and that Abraham Miles, the complainant, and Tichenor Miles, the brother, and one of the defendants, are interested as tenants in common in the remainder. ”

The complainant, being thus interested in the premises as a remainder-man, has resorted to a remedy for the grievances complained of, the staying of waste. That is recognised, not only by courts of equity generally, but by the express provisions of our statute. Williams v. Duke of Bolton, 3 P. Williams 268, n; 1 Story’s Com. § 69, note; ditto, § 517, 518; 4 Kent’s Com. 77; 3 Danl’s Ch. Prac. 1849 ; Rev. Stat., chap. 171, § 7.

But is the complainant entitled to the relief sought by his bill, when the answers and evidence‘are considered ?

The defendants deny all the general charges in the bill of cutting upon the premises, or of combination, agreement,-or intent to commit waste, and there is no evidence to overthrow the answers in this respect; so that, in deciding whether the bill is sustained, we are brought to the specific acts charged against each defendant, and to the law governing the same.

'"¡, According to Sir Edward Coke, every tenant for life is entitled, of common right, to take reasonable estovers, that is, wood from off the land for fuel, fences, agricultural erections, and other necessary improvements.^ They are estoveria cedifieandi, ardendi, arandi et elaudendi. Co. Litt. 41, h. \ But under the pretence of estovers, the tenant must not destroy the timber, or do any other permanent injury to the inheritance.-’' Co. Litt. 93, a, h; ditto 53, a. And Chancellor Kent lays down the same general rule. 4 Kent’s Com. 73, 75.

But to what precise extent tenants for life may go in exercising their rights under this general rule, the authorities are not in all respects agreed. Kent says that the American doctrine on the subject is more enlarged than the English, and better accommodated to the circumstances of a new and growing country. 4 Kent’s Com. 76.

In Elliot v. Smith, 2 N. H. 432, Woodbury, Justice, says, that what ought to be deemed timber trees in this country, and whether they can ever be cut for agricultural purposes, are questions of some difficulty. In that case it was held that a tenant for life may cut trees for fire-wood, and for fencing the land. The tenant had cut and sold two trees, to pay for boards and stakes, and labor done in repairing the fences on the land, and the cutting was held illegal.

In Fuller v. Wason, 7 N. H. 341, it was decided that in order to entitle a tenant in dower to take fire-wood, there must be a house upon the land when it is assigned to her as dower.; that the tenant can use the wood only in such house; and if she take it herself, or permit any one else to take it, to be used elsewhere, it is waste. Richardson, C. J., in delivering the opinion of the court, says that every tenant in dower has a right, incident to the estate, to take fire-wood, if there be a house assigned to her on the land; to take timber for the repairing of fences and buildings upon the land, and to take timber to make plows, &c., if there be tillage ; but that she has only a special property in the wood, to use it for those purposes upon the land, and can not sell it: That she cannot take timber from the land to build a new house, or new fences, where there were none before. And the learned chief justice cites several authorities to sustain his views.

In Paddleford v. Paddleford, 7 Pick. 152, it was held that it was not waste to cut oak trees for fire-wood, or to make posts for fences, but that it was waste to cut timber trees and sell them in exchange for fire-wood.

There can be no doubt that a tenant for life may take from the land wood necessary for the repairing of fences and buildings which are on the premises at the commencement of the tenancy. Co. Litt. 41, b, and 53, b ; 2 Black. Com. 122; Paddleford v. Paddleford, 7 Pick. 152 ; Fuller v. Wason, 7 N. H. 341; Elliott v. Smith, 2 N. H. 430.

But this right cannot extend beyond the proper use of wood and timber upon the premises themselves. The title in the wood and timber, until cut, is in the reversioner or remainder-man. The estate of the tenant for life consists in the use of the premises, and nothing more. This use, to be made of service to the tenant, must be such as to give him necessary fuel, that he may remain upon the premises, and sufficient timber to keep the fences and buildings in repair. The annual crops of course belong to him, for they are not permanent in their nature. It is equally, too, for the advantage of the reversioner that the buildings and fences should not be suffered to go to decay. But when it is permitted to the tenant to cut wood or timber for purposes disconnected with the premises, he is no longer using his life estate in the land, but is converting to his use the permanent growth of the land — the wood and timber — which belong to the reversioner. And although it may seem to be holding the rule strictly, to say that trees may not be exchanged for boards and stakes, to repair the fences on the premises, as was the case in Flliott v. Fuller ; or that wood may not be consumed in a house not situated on the premises, in quantity less than would be used in the house upon the premises, as was the case in Fuller v. Wason; or that trees may not be exchanged for as great or greater quantity of fire-wood than the trees would make, as was the fact in Paddleford v. Paddleford; yet it must be perceived that any departure from the rule requiring the wood and timber to be used on the premises, and for the advantage of the same, might lead to abuses which in the. end would work great injustice to the reversioner; and although there may be many instances in which no injury would arise to any one by a slight departure from the rule, yet we think that it will be better to adhere to the doctrine as advanced in the authorities cited.

Upon these principles, taking the bill and answers as the basis of our conclusions, and how stands this case ?

Joseph Meserve, and Betsey, his wife, have never cut or taken from the premises either wood or timber, except through their tenant, Kingman. They had the right to lease to King-man ; for tenants for life have the power of making under-leases for any lesser term; and the same rights and privileges are incidental to those under-tenants, which belong to the original tenants for life. 4 Kent’s Com. 78.

Kingman occupied the part belonging to the Meserves for two years, and during that time cut twelve sapling pines, with which to make boards to repair the bars and fences on the place. A part of the boards he used for that purpose, and the rest he left upon the premises, intending to use them, if his lease had continued ; also the wood from the tops he left there. All that Kingman did was for necessary repairs on the premises, and neither he nor the Meserves are chargeable with waste, upon the bill and answers.

Tichenor Miles, who is tenant in common with the complainant in the remainder of the estate, cut one oak tree, on a disputed line. He denies all cutting after his father’s decease, except this oak. The barn-frame which he is charged with cutting, both he and his mother state was cut before his father’s decease. There is nothing here which upon the bill and answers would . entitle the complainant to a decree.

Lydia Miles and Nancy Miles, the mother and daughter, who have resided upon the premises, have cut and sold from the land to the amount of about five dollars a year; and although it is very probable that, by their economy, they have saved that much for the remainder-men, yet they had no legal right thus to cut and convert the property to their use; and in so doing they would be guilty of waste, unless the cutting were by the consent and permission of those interested. They both, however, state that whatever they did was with the knowledge and by the express license of the complainant and Tichenor. Tiehenor also states the same, and that he had frequently heard the complainant say that he had no objections whatever to Nancy’s cutting and selling, for herself and mother, wood and timber to the value of twenty-five dollars a year; and that he, the complainant, had given her permission to cut to that amount, and would never deny her such a privilege. He says, also, that what they have cut would not amount to five dollars a year. The answers relieve the two defendants from the charges of waste, and upon the bill and answers the bill is not sustained against any of the defendants. But the complainant has filed replications to the several answers, and testimony has been taken by him to sustain his bill. This' testimony we have carefully examined, but we do not find that it alters the complexion of the case.

It is a rule in equity, that the answer of a defendant to a bill filed against him upon any matter stated in the bill and responsive to it, is evidence in his own favor; and not only so, but is conclusive in his favor, unless it is overcome by the satisfactory testimony of two opposing witnesses, or of one witness, corroborated by other circumstances and facts, which give to it a greater weight than the answer. In such case the court will not make a decree, but simply dismiss the bill. Hart v. Ten Eyck, 2 Johns. Ch. 92; Hughes v. Blake, 6 Wheaton 468 ; Gould v. Williamson, 21 Maine 273 ; Pierson v. Cutler, 5 Vt. 272 ; Hollister v. Barkley, 11 N. H. 501; 2 Story’s Eq. Juris., § 1528 ; 2 Danls. Ch. Prac. 983 ; Greeley Eq. Ev. 4.

The rule, however, does not apply to cases where the answer, admitting or denying the facts in the bill, sets up other facts in defence or avoidance. In such cases the facts so stated must be proved by independent testimony. Hart v. Ten Eyck, 2 Johns. Ch. 88, 90 ; 2 Story’s Eq. Juris., § 1529.

It has also been held that the answer of a defendant, which is responsive to the bill, is admissible as evidence in favor of a co-defendant. Mills v. Gore, 20 Pick. 28; Field v. Holland, 6 Cranch 8.

Some of the evidence in this case has very little tendency to •contradict the answers, and that which does come in conflict with them is not of that definite and satisfactory kind which leads to a conclusion favorable to the complainant. And in no respect are the answers overthrown when tried by the rules which we have stated.

The death of John Kingman, one of the defendants, was suggested at the July term, 1854, and his estate has been decreed to be administered in the insolvent course. The suit against him was thereby abated. Com. Stat., chap. 170, § 8. No bill of revivor-has been brought by or against his representatives, without which the action could not proceed against him. Story’s Eq. Pl., § 369 ; Boynton v. Boynton, 1 Foster 246.

The result then is, that, so far as Kingman is concerned, the bill is simply dismissed. There is no one in court representing him. But as to the other defendants, the bill must be

Dismissed with costs.