18 N.H. 587 | Superior Court of New Hampshire | 1847
Robert Traill was formerly in possession of the demanded premises, and in the year 1785 conveyed the same for the use of his daughter Mary, then the -wife of Keith Spence. Spence and his wife were already in possession, and so continued till his death, after which Mary remained in possession till 1823, when she ■ died, having devised the estate to her son, Robert Traill Spence, of Baltimore. He died in 1826, leaving seven children, of whom the demandant is one.
Now it is perfectly clear that upon this state of facts the demandant would be entitled, as against a stranger, to maintain his action for one undivided seventh part of
To rebut this case made by the demandant, the tenant offered to prove that the title to the land was in another; that Robert Traill, the ancestor, was not seized in fee, but was in possession only as the tenant of the North Parish, and that the demandant himself had recognized the title of the parish.
The tenant does not derive a title from the parish, but seeks to rebut the evidence of the demandant’s seizin by the proof offered.
First, as to that part of the evidence offered that relates to the title of Robert Traill. It would not disprove the seizin of Mary Spence, who was in, claiming a fee, under a conveyance purporting to give one, from one who was in possession when he gave it, to show that the grantor’s title was defective, or that he was in possession in subordination to another. The evidence was, therefore, incompetent.
Secondly, as to the evidence proving that the demand-ant had acknowledged the title of the parish. It is a perfectly established rule of evidence in the trial of real actions, that where a demandant has put in evidence of his own seizin in fact of the premises demanded, the tenant shall not be permitted to prove that the title is in another, unless he himself has that title. Such evidence exists in the present case. The color of title is the will of Mary Spence, conveying a fee to the demandant’s ancestor, and the possession of Maria B. Spence is shown by evidence hereafter to be considered, to have been his possession under that will. The tenant cannot oppose that by evidence that another party has a better title. It would be wholly unreasonable to require the plaintiff, in
This view appears to be conclusive, without inquiring whether the evidence offered was sufficient to disprove the seizin of Mary Spence.
The payment of rent by her executor to the North Parish is a clear admission on his part that some such relation as that of tenancy existed between the testatrix and the parish. But that was not her admission ; and the demand-ant might have known and approved of the act without, perhaps, being estopped by it. He might have had no interest to oppose it. It was the act of one who was not bound by the demandant’s wishes in respect to it, and of one between whom and the demandant there is no privity in respect to the estate. It would be going far to say that the payment of rent by the executor could estop the heir from claiming a freehold, even though the heir advised him to yield to the claim.
But the case is decided upon the ground that the demandant was seized in fact.
As to the declarations of Maria B. Spence, a daughter of Mary, and who remained in the occupancy of the premises after the decease of her mother, their effect and purport are to recognize the title of the plaintiff, and that she was in possession under him, and by his permission.
It has frequently been held that the declarations of one in possession are evidence against those who claim under them. Bagalley v. Jones, 1 Campb. 367; Human v. Pettett, 5 B. & Ald. 223.
But it has also been held that such declarations are evidence in favor of the party whose title was acknowledged by their purport, even against those who had no privity or connection with the tenants.
In Doe v. Stacy, 6 Car. & P. 139, the same principle was sustained, against the objection taken by the defendant, that he did not claim under the tenant whose acts and declarations wore offered in evidence.
The principle was recognized in Woods v. Blodgett, decided in Grafton county, 1845, and Professor Greenleaf, in his treatise on evidence, states it in full and explicit terms. 1 Greenl. Ev., sec. 109, where the authorities are collected.
Maria B. Spence was occupying the disputed premis'es. That occupancy, unexplained, would be proof of seizin on her part. But occupancy is an act capable of explanation, and carries with it legal consequences, depending upon the purpose for which it is exercised. A knowledge of this purpose may be derived from the declarations of the party performing the act, and peculiar force is given to his expressions, when they are against his own interest, and tend to cut down his title.
If one, in the open and ostensible occupancy of land, is there as the servant or the tenant of another, this other is really the one in possession, performing the acts appropriate to that relation, through the agency of his tenant or servant. Thus the possession of the premises is proved by the declarations of Maria B. Spence, deriving their credit from their connection with her act, and from their being, in disparagement of her title, to have been in the demandant.
The evidence was properly admitted.
The objections to the depositions came too late. The depositions had been used without objection at a former
There must, therefore, be
Judgment on the verdict.
