36 N.H. 575 | N.H. | 1858
The line between adjoining owners of land may be established by them by a parol agreement, and such agreement, when executed, is conclusive upon the parties and all claiming under them. Sawyer v. Fellows, 6 N. H. 107 ; Eaton v. Rice, 8 N. H. 378 ; Wakefield v. Ross, 5 Mason 15 ; Boyd’s Lessee v. Graves, 4 Wheat. 513 ; Jackson v. Ogden, 7 Johns. 238 ; Rockwell v. Adams, 7 Cowen 761.
Richardson, C. J., in Eaton v. Rice, says that such is the well settled rule in this State, and that the parties and all claiming under them will be forever bound by the agreement.
The mortgagor of real estate, as against all persons except the mortgagee and those holding his rights under the mortgage, is the owner of the estate mortgaged. The mortgagee is entitled to have his mortgage interest regarded as real estate, and himself as the owner of the land, so far only as to enable him to protect his rights secured by the mortgage, and to give him all necessary and appropriate remedies for that purpose; but in all other respects, and for all other purposes, his interest is merely one of security for the debt. Ellison v. Daniels, 11 N. H. 274; Glass v. Ellison, 9 N. H. 69 ; Smith v. Morse, 11 N. H. 55 ; Great Falls Co. v. Worster, 15 N. H. 412.
In Southerin v. Mendum, 5. N. H. 420, it is said by the court to be well settled that, as respects all the world except the mortgagee, the mortgager is to be considered as the owner of the land.
In Wellington v. Gale, 7 Mass. 138, Parsons, C. J., says that the mortgager, after his mortgage, still continues the owner of the land and seized of it against all persons but the mortgagee,
And in Hitchcock v. Harrington, 6 Johns. 290, Kent, C. J., in delivering the opinion of the court, says that it is the settled law of the Supreme Court and the Court of Errors of New-York, that the mortgagor is to be deemed seized, notwithstanding the mortgage, as to all persons except the mortgagee and his representatives. When his interest is not in question, the mortgagor, before foreclosure or entry under the mortgage, is considered at law as the owner of the land.
A mortgagor, as against a stranger, may maintain a writ of entry for the land mortgaged. Ellison v. Daniels, 11 N. H. 274. And in the case of the laying out of highways, the mortgag- or in possession is the proper person to be notified of the he ar-ing, and to receive the award of damages. Parish v. Gilmanton, 11 N. H. 293; Gurnsey v. Edwards, 26 N. H. (6 Foster) 224.
Upon these principles and authorities there would seem to be no doubt that the ruling of the court upon the first point was correct. Adjoining owners of land may establish the line between them by parol agreement, and mortgagors are owners as to all but the mortgagees. With the exception of the mortgagee, the owner has entire control over his property.
There is no suggestion that, in the agreement establishing the line, as stated in this case, there was any infringement upon the rights of the mortgagee; and even if there were, the plaintiff does not claim to have derived his title from the mortgage. There was nothing, therefore, in the facts of this case to take it out of the rule by which a line established by adjoining owners is binding upon those who may claim under them.
It is unnecessary to cite authorities to show that the testimony of a deceased witness may be given in evidence on a subsequent trial of the same cause. So far the books are all agreed. Young v. Dearborn, 22 N. H. (2 Foster) 372. But, as a general rule, the parties must be the same. 1 Phil. Ev. 230; Jackson v.
It is not required, however, that the parties to the second suit should be literally the same as in the first, for if the trial is between those who represent the parties to the first, by privity in law, in blood, or in estate, the evidence is admissible. 1 Greenl. Ev., sec. 164 ; Jackson v. Lawson, 15 Johns. 539 ; Jackson v. Crissey, 3 Wendell 251; Boudereau v. Montgomery, 4 Wash. C. C. Rep. 188; Ritchie v. Lyne, 1 Call 489.
In Wilbur & Selden, 6 Cowen 162, the parties in the former suit were Wilbur & Doremas against Selden, Richards & Ogden; in the second, .they were Wilbur, survivor of Doremas, against Selden, impleader with Richards, survivor of Ogden; and it was held that the parties were substantially the same.
Neither is it -necessary that the former testimony should have been given on the trial of a cause in the exact technical shape of an action. It is sufficient if the point was investigated in a judicial proceeding of any kind, wherein the party to be affected by such testimony had the right of cross-examination. Thus the rule has been applied to a witness testifying before commissioners appointed by a statute to settle the title to lands — Jackson v. Bailey, 2 Johns. 17 ; before trustees of an absconding debtor — Cox v. Pierce’s Trustees, 7 Johns. 298; before arbitrators — Forney v. Hallagher, 11 Serg. & Rawle 203, and in other similar cases. Fitch v. Hyde, Kirby 258; Arwin’s Lessee v. Bisling, 1 Yeates 400; Ottinger v. Ottinger, 17 Serg. & Rawle 142; Ray v. Bush, 1 Root 81.
Rut the testimony offered in this case was not admissible according to any of the authorities which we have examined. The parties in the present suit are not the same as in the former, nor are they in privity with them so as to be bound by what was
There are cases which hold that where the number of the parties is reduced in the second suit, the identity of those which remain being retained, the testimony may be used. Wright v. Totham, 1 Ad. & Ellis 3 ; Wilbur v. Selden, 6 Cowen 162. But we have found no case where the testimony has been admitted, if new parties, who are not privies, are introduced into the second suit.
There is nothing in the case which shows that Gilchrist’s testimony was of a character to be admitted upon the last ground taken in the argument. The case does not state what his testimony was, and. we are not at liberty to presume that it was of a nature to be admitted upon that ground.
Upon the facts stated the ruling of the court was correct, and there must be
Judgment on the verdict.
