Smith v. Powers

15 N.H. 546 | Superior Court of New Hampshire | 1844

Parker, C. J.

Some of tbe points taken at tbe trial have not been pressed upon tbe argument, but as they have not been abandoned we shall notice them briefly.

Tbe opinion of tbe court in favor of tbe defendant, upon tbe demurrer to tbe new assignment, was founded upon tbe fact that tbe whole matter brought in controversy by tbe writ was in issue by tbe pleadings of tbe parties, without tbe new assignment, and before its, introduction. Upon tbe delivery of this opinion tbe plaintiff asked leave to amend by withdrawing tbe new assignment, and tbe leave was granted upon tbe usual terms, that be pay tbe costs. Upon farther consideration, the plaintiff declines to do this, and the objection to his proceeding with the aetion until the costs are paid, brings us to the consideration of the effect of the motion and of the order upon it.

If the court, by the order, had required costs to bo paid, then the defendant ought not to have proceeded until the requisition had been complied with. But the court made no such requisition. The plaintiff asked leave to withdraw a portion of his pleadings. The court did not order that he should do so, but gave him permission to do so on his complying with certain conditions. This is a mere license, and leaves the party at liberty to consider whether he will act upon tho license, with such a condition annexed to it. If ho does, he must comply with the terms. If he does not, the case stands as if ho had not applied for the permission.

The plaintiff declined to avail himself of the liberty given him. There is no reason why the court should require him to do so. Judgment is, then, to be entered on the demurrer, for the defendant. But this judgment is no broader than the matter in issue, upon which it is founded. It can apply only to the demurrer, and that was to the new assignment. The other pleadings are left for farther proceedings, and they present issues of fact for trial. The court cannot deprive the plaintiff of his right to try these issues because he has failed upon another issue framed between the parties. Upon that issue the defendant will tax such costs as he is entitled to. Perhaps this may not be to so great an amount as the terms imposed would have given him, if the the plaintiff had acted upon the leave given him. But that cannot change the plaintiff’s rights. The taxation of costs is not now in question. Perhaps, if the court had adverted more particularly to the state of tho pleadings, the terms of withdrawing the new assignment might not have embraced so great a portion of the costs. It is immaterial how that may be. It is sufficient that the defendant is not prejudiced by the plaintiff’s having asked a favor of the court, which he declined to accept because the grant of it was burdened with a condition.

This statement of tho situation of the pleadings would seem to dispose of the motion for judgment for the defendant non obstante veredicto, if the defendant could in any case have such a judgment. It is very apparent that he could not be entitled to it because he had prevailed upon one of three issues, the other two being found against him; more especially when the issue found in his favor does not relate to the merits, but only involves a question respecting the formality of the pleadings; whereas, those found against him involve the whole merits of the case. But the authorities cited by the plaintiff’s counsel show that a defendant cannot have such a judgment. He is entitled only to an arrest of judgment, when the plaintiff has a verdict but it appears that the action is not sustained.

The evidence did not show the parties to be tenants in common of the tract of land in dispute. The deeds introduced do not show ihat such a tenancy ever existed between any prior owners of the lot. Whether a conveyance by the owner of the whole lot, of the south half of it in quantity and quality, would operate as a conveyance of one half in quantity only, on account of the uncertainty which would otherwise exist respecting the dividing line until settled by agreement of the parties, or whether some proceeding might be had in such case to settle the line of separation in case the parties failed to agree, we need not now determine. The deed of Bedel to Gilman, which contained that description, and the subsequent deeds, which followed substantially the language of that deed, undoubtedly conveyed an estate; but it could , not be in the north half of that lot, for that could not be included hr the description, and the estate conveyed in the deed could not have been set off to the grantee in the north part of the lot, for .that reason. Tins shows clearly that the different owners of the ■lot were not tenants in common, but held in severalty. The only .question Which could arise was where the dividing line should be located.

But if it were supposed that the deed, Bedel to Gilman, originally created a tenancy in common, that could not avail the defendant ; for if that were so, the defendant’s evidence would not make him a tenant in common through any deed or possession; .and .moreover, the case shows conclusively that partition had been made, and that the parties hold in severalty. Both parties claimed to a pine root on the west line of the lot, as a boundary between them; and each claimed to a monument on the east line as a boundary also. But these monuments were different. Each put in evidence to show a marked lino between the pine root on the west, and the monument he claimed to on the cast. The controversy was, which of these two lines was the true one. The answer of the jury that they found that a line had been agreed upon, as eon-tended by the plaintiff, makes a part of the case. The court may inquire of a jury upon what grounds they found their verdict, and the answer may be considered upon a motion for a new trial. 6 Pick. R. 208, Pierce vs. Woodward; 12 Pick. R. 525, Dorr vs. Fenno ; 18 Maine R. 87, Smith vs. Putney.

The evidence that Jacob Rowell, while he lived on the lot, pointed out the boundary upon the east, to which the plaintiff claims as the corner between him and the plaintiff, and spoke of the bound as being in that place, was admissible. This evidence would have been competent if Rowell had still boon living, as the act and declaration of a party in possession, limiting his possession, and thus evidence against him and those who come in under him. 4 Johns. R. 230, Jackson vs. Bard; 10 Johns, R. 377, Jackson vs. McCall; [14 N. H. Rep. 19, Pike vs. Hayes.] His declarations, tending to favor his interest by extending the limits of his possession, could not have been proved by him in his own favor, and were not competent evidence in favor of the defendant, who has succeeded him, whether he does or does not hold under Rowell’s title, because Roivell had an interest to make them. 4 N. H. Rep. 213, Shepherd vs. Thompson. And for this reason those declarations ai'e not competent, notwithstanding Jacob Rowell is now dead.

The declarations of John Rowell respecting the south-west corner of the lot are not liable to that objection. 'It does not appear that he had any interest in making them, or any purpose to subserve thereby. It is true, as the defendant’s counsel contended, that the decisions in England seem to restrict the evidence of the declarations of deceased persons respecting boundaries to cases which relate to public rights, or to boundaries in which several persons are interested, or to what the deceased said relative to the public opinion respecting the boundary. But the testimony has not been limited in this country. The authorities are amply sufficient to sustain the principle that the declarations of a person deceased, who appeared to have had means of knowledge, and no interest in making the declarations, are competent evidence upon a question of boundary, even in a case of private rights. 5 N. H. Rep. 37, Lawrence vs. Haynes ; 3 Dane's Abr. 397 ; 9 Conn. R. 447, 451, Higley vs. Bidwell; 6 Binney R. 62, Caufman vs. Congregation of Cedar Spring. Upon this principle the declarations of John Rowell were well admitted. It was in evidence that he pointed out the boundary.

The motion to set aside the verdict' on account of the misbehavior of the plaintiff’s agent, cannot prevail. The affidavits of all the jurors, except one, show that they heard no remark made by Morrison relative to the case. That one testifies that he heard nothing except filie words, “ Gilman Road.” He was then engaged in conversation; and those vjords, but nothing else which Morrison said, attracted his attention.

Judgment on the verdict..