Prescott v. Hawkins

16 N.H. 122 | Superior Court of New Hampshire | 1844

Parker, C. J.

The bill alleges, that prior to October 28,1841, Nathaniel C. Prescott, the father of the plaintiff, purchased of Arthur Livermore a certain tract of land particularly described, partly by courses and distances; that a deed was drawn and executed, bearing that date and intended as a conveyance of that tract, but that by mistake and accident one of the courses which run N. 20° "W., was inserted in the deed as N. 20° E., &c.

The mistake is sufficiently proved. Judge Livermore in his answer admits it. His evidence has been introduced without objection, and there is other evidence in corroboration from the surveys and otherwise.

If Judge Livermore had continued to be the owner of the land lying on the north, the plaintiff would have been entitled to have the mistake corrected, which would doubtless have been accomplished without the intervention of this court. But subsequently to the execution of this deed, 18th January 1836, he sold the land lying northerly of the tract thus purchased by Prescott to Samuel Hackett, and by the deed to him bounded the land conveyed thereby, southerly on the land of Prescott. Ilaekett died. Ezra Hackett, one of his heirs, purchased the shares of the others in the land owned by Samuel Hackett northerly of his tract, and conveyed the same to the defendants by a similar description to that contained in the deed to Samuel Hackett. As the deeds and the record stand therefore, the defendants appear to have a title to the strip of land excluded from the conveyance by Judge Livermore to Prescott, by means of the mistake before mentioned. But if Samuel Hackett and those who have derived title under him, are chargeable with notice, actual or constructive, of the existence of this mistake, then the plaintiff is entitled to the same relief against those so chargeable that she would have had against the grantor himself.

The defendants do not admit such notice when they purchased of Ezra Hackett. The answer of Cummings not only denies notice at the time when he made the contract for the purchase and took the obligation of Ezra Hackett to convey, but it also denies that he had any notice before the execution of the deed. The answer of Hawkins only denies that he had notice at any time before the contract, and admits that after the date of Hackett’s bond to convey, he heard that the plaintiff claimed to have some right by reason of some error or mistake in the deed from Livermore to N. C. Prescott.

"Were it necessary to examine the effect of this admission, we should probably find that it was effectual to entitle the plaintiff to maintain this bill. The contract was made by Cummings for both. The bond from Hackett was to both. Notice to one therefore would be notice to both. Blenkarne v. Jennens, 2 Bro. P. C. 278. And there are competent authorities to show that notice after a contract for purchase, but before the completion of it by the payment of the consideration, is sufficient. Blair v. Owles, 1 Munf. 38; Hoover v. Donally, 3 Hen. & Munf. 316; Jewett v. Palmer, 7 Johns. C. R. 65; Simms v. Richardson, 2 Litt. 274.

It is not necessary however to determine this case upon the effect of the answers. The evidence is quite sufficient to show that both the defendants had notice prior to the time of the contract. The answers are overcome by the testimony of three witnesses, one of whom shows notice to both, and each of the others notice to each of the defendants. There is in the evidence also the admission of Hawkins, that in the year 1834 he purchased of the plaintiff’s guardian “ a lot of down timber,” more than half of which was on the land now in dispute. The further evidence that Cummings stated that Ezra Hackett would not give a warrantee deed and would only execute a quitclaim, for the reason that he had understood that there was a mistake in the deed from Livermore to Prescott, seems to be quite unnecessary, however conclusive it may be.

But notwithstanding the defendants had notice, if any of those under whom they derive title were purchasers bond fide, for a valuable consideration, without notice, so that they might have held'the land notwithstanding the mistake, the defendants will have the right to stand upon the strength of their title. Bumpus v. Platner, 1 Johns. C. R,. 213 ; Varrick v. Briggs, 6 Paige 323 ; 1 Story’s Eq. Jur., secs. 400, 410, 411.

Here again the evidence is against the defendants. Samuel Haekett who purchased of Judge Livermore bounding on Prescott, had knowledge of the extent of Prescott’s purchase, and claimed no further than the disputed line, and said the mistake ought to be rectified. It does not appear very clearly how Ezra Haekett, the grantor of the defendants, acquired his title. If he held part by descent, thus far he stood in no better situation than his ancestor. 1 Story’s Eq. Jur., sec. 165. If he derived his title to the residue through a sale by the administrator, under a license for that purpose, as seems to be indicated by some of the evidence, it is questionable whether he is entitled to claim under that sale any greater right than the intestate had, subject to all the equities to which it would have been liable in his hands. "We are not aware of any authorities which hold that a purchaser at such a sale is within the rule protecting a purchaser of a particular tract of land for a valuable consideration without notice, or as having greater rights than the intestate. The administrator sells the estate of the intestate. If a stranger might hold as such purchaser, a question might still be made whether Ezra Haekett, who held one share as heir subject to all equities, was entitled to hold the remainder as a purchaser discharged from all equities. These questions are rendered immaterial to the decision of this case by evidence showing that Ezra Haekett also had actual notice of the existence of the mistake, and could stand on no better ground than his father, even if he were a purchaser for a valuable consideration. He clearly had notice when he sold to the defendants, and before that time. There is no evidence tending to show that he had not knowledge at the time of his purchase. His testimony is hot procured by the defendants to show a want of notice at that time, and the defendants have not attempted to place their case upon the strength of his title from a want of notice in him.

Decree that the deed he reformed and that the defendants release.