Waldron v. Tuttle

3 N.H. 340 | Superior Court of New Hampshire | 1826

By the court.

We have attentively considered this case, and have come to the conclusion, that there must be a new trial. The jury were told, that it was competent for them to presume, from the possession of the plaintiff, and the length of time, which had elapsed since the deeds of the collectors were made, that all acts and proceedings had been duly done and had, which were necessary to the validity of those conveyances. But we are of 'opinion, that, under the circumstances, the possession of the plaintiff, and the antiquity of the deeds, afforded no legal ground, on which -any such presumption, with respect to the deed of Holmes, could rest. That deed was made more than forty years ago ; but it had not been accompanied with any exclusive possession. The plaintiff had occasionally entered. But the defendant, and those, under whom he claims, have been constantly in possession. A possession, to be the ground of any presumption in favor of such a title, must be a long, open, undisturbed possession, adverse to the title of the former owner.

And we are of opinion, that in no case can a jury be permitted to presume, from the mere production of a collector’s deed, and from proof of possession under it, that the sale was legal. Very few of those sales have been found to be legal. The presumption is in fact against their validity. He, who rests his claim to land upon the legality of such a title, must shew affirmatively, that the law of the land has been substantially pursued in the sale. And in no case can he be permitted to rely upon possession as evidence, even of particular facts, until he has shewn, that the common and ordinary evidence of such facts has been probably lost by time and accident, and is not to be found. In all cases, enough of the proceedings should be shewn to render it not improbable, that the proceedings may have been regular ; and then long and quiet possession may be left to a jury, as evidence of particular facts, the ordinary proof of which is not to be found.

We are, therefore, of opinion, that the jury were misdirected in relation to the conveyance by Holmes.

The deed of Felker stands on ground somewhat different. That instrument purports to convey a portion of the estate ⅛ the land in common ; and it was not to be expected, that the plaintiff would shew any exclusive possession under that deed. But, in such a case, the possession in common must be shewn to have been open and known to the former owner, and to have remained long undisturbed by him, before it can be submitted to a jury, as a legal ground of presumption in favor of a collector’s sale. It does not appear from the case saved, that the possession of the plaintiff was of this character ; and we think it was improperly submitted to the jury, as evidence of the regularity of the collector’s proceedings.

Being of opinion, that, for the foregoing reasons, anew trial must be granted, it is unnecessary to express any opinion upon the question, whether, under the statute of March 16, 1780, (1 N. H. Laws 520,) a collector was authorized to sell a portion of the estate in common.

New trial granted.