Warren v. Swett

31 N.H. 332 | Superior Court of New Hampshire | 1855

Eastman, J.

The only material matters in controversy between Warren and Swett, relate to the delivery of the deeds and to the abandonment of the agreement to make the partition. Upon these two points there is a direct issue, and several depositions were taken bearing upon them.

Judge Rust, who made the deeds, testifies that in March, 1850, he was called upon by Swett to run out the land and ascertain its contents, and that he did so. That, after the survey was completed, Swett proposed to Warren, who was present, to make partition of the land, and Swett made the proposals stated in the bill; that Warren acceded to the proposal to pay Swett ten dollars for the choice of lots, after Swett should divide the tract, and he then paid Swett the money. That they then requested the witness to make out the deeds from one to the other, and he did so. The witness then proceeds to say : “ The deeds were read to them, and they signed them, respectively, and acknowledged them. They were then folded up by me and superscribed, and handed by me to each, and Swett put his in his pocket. The deeds were sealed and witnessed before being delivered by me. After they were handed to them, Swett asked the witness what his bill was, and he told him two dollars for the survey and casting the contents. Swett said to Warren that it would be a dollar apiece. Warren replied, I don’t know, Mr. Swett, about my paying one half the expenses. Swett objected to paying all the expenses, and took out his deed and the ten dollar bill and laid them down before Warren, and took up Warren’s deed, and then immediately turned and went out of the door. As he was going out, Warren spoke and said, Stop, Mr. Swett, let us see if we can’t settle this, or reconcile it. The witness thought Swett did not hear Warren speak to him ; that there was nothing more said and Swett did not return. Warren left soon after, and took with him the deed and the ten dollar bill that Scott left on the table; but he did not touch them till after Swett was gone.”

Two other witnesses, who were present when the deeds were executed, testify, substantially, in the same manner as the preceding witness, as to the facts that took place at that time; and there is no evidence contradictory of this, nor any showing that Warren then, or at any time, agreed to abandon the partition or give up the deeds, as stated by Swett in his answer, or that he agreed to pay any of the fees for the survey. Swett’s answer is, in fact, contradicted by three witnesses, which is, at least, one more than the rule requires. It is not necessary that there be two witnesses even, for notwithstanding an answer which is responsive to the bill, and which directly negatives it, will stand good against one witness, and no decree will be made against it until more evidence is adduced; yet the answer may be overcome by one witness, supported by circumstances corroborating the plaintiff’s case, especially if those circumstances be equivalent to the testimony of another witness. 2 Story’s Eq. Jur. § 1528; 1 Greenl. Ev. § 260; 2 Danl. Ch. Prac. 985; Clarke v. Van Reimsdyk, 9 Cranch 160; Pember v. Mathes, 1 Bro. Ch. Rep. 52; Columbia Bank v. Black, 2 McCord’s Ch. Rep. 344, 350; Pierson v. Catlin, 3 Vt. Rep. 272; Cunningham v. Freeborn, 5 Paige 551.

The only evidence having a tendency to show that Warren acquiesced in the surrender of the deeds, was his taking the money and deed after Swett had left Rust’s house, and retaining them in his possession some two weeks before seeking Swett, and tendering them to him and demanding his deed.

The testimony also shows that Swett purchased of Benjamin Warren by the acre, and that he agreed to ascertain the quantity of the land at his own expense; and the evidence tended to show that the survey made by Rust was in consequence of that purchase and agreement, and not by any arrangement with the complainant.

From an examination of the evidence, which is somewhat voluminous, we are satisfied that the allegations of the bill are substantially made out.

"We think that the deeds were delivered. No form of words is necessary in the delivery of a deed. It is complete when the grantor has parted with his dominion over it, with intent that it shall pass to the grantee, provided the grantee assents to it, either by himself or his agent. Co. Litt. 36; Shepard’s Touchstone 57, 58; Verplanck v. Sterry, 12 Johns. 536; Porter v. Cole, 4 Greenl. Rep. 25; Com. Dig. Fait. A. 3; Blight v. Schenck, 12 Barr 285; Sowverbye v. Arden, 1 Johns. Ch. Rep. 240; Jones v. Jones, 6 Conn. Rep. 111; Doe v. Knight, 5 Barn. & Cress. 671.

The delivery may be by an- agent of the grantor, as well as received by an agent of the grantee. When the grantor assents that the deed shall pass into the hands of the grantee, and the grantee assents to its reception, the delivery is complete.

If both parties be present, and the usual formalities of execution take place, and the contract is to all appearance consummated, without any conditions or qualifications annexed, it is a complete and valid deed, and this notwithstanding it be left in the custody of the grantor. 4 Kent’s Com. 455.

These deeds were made by the request of the parties. They were duly executed and acknowledged, and Warren had previously paid to Swett the ten dollars, as the consideration for the choice. They were passed over to the respective parties by the gentlemen who made them, in the presence and without the dissent of either, and Swett put his into his pocket; and it was not till the bill for the survey came to be settled that any dissatisfaction was manifested. But it was then too late to revoke what had been done. The bill for Judge Rust’s services had formed no part of the agreement for the partition, and he had his claim upon one or both for what he had done. It was not in the power of either party to annul a conveyance thus deliberately executed and upon good consideration.

The fact that Warren kept the deed of Swett and the ten dollars for two weeks, might tend to show that he agreed to the surrender of the deeds, if there were any thing else to corroborate it. But there is not. All the evidence is the other way, and a man unacquainted with his legal rights might well enough take the course he did without any intention of abandoning the partition. As against Swett, then, we think, the complainant had good ground for filing his bill, and that he should have a decree in his favor.

We think, also, that the complainant is entitled to relief against the other defendants. They took the conveyances with a knowledge of all the material matters that had transpired. This their answers virtually admit. They admit that, prior to the conveyances to them, they had heard that Warren and Swett had agreed to divide the land, and that deeds were made, as stated in the bill, to give effect to the agreement; that a dispute arose between them, and that Swett took the deed which he had given to Warren, and carried it it away against the will of Warren ; and that they were told there might be some dispute about the title. It is true that they add that they had not full and perfect knowledge of the partition or the making and delivery of the deeds. But this is a negative of a very unsatisfactory kind, and, it appears to us, does not weaken, in any degree, the force of the previous admissions. The defendants knew that the partition had been made, and that deeds had been given.' They knew that Swett had carried away Warren’s deed without his consent, and that there was a dispute about the title. Indeed, it is difficult, from their answers, not to arrive at the conclusion that they were well informed in regard to the whole transaction. With the facts that were within their knowledge, they ought to have inquired of Warren and of Judge Rust, and the witnesses to the deeds. What they knew should have put them on inquiry, for where facts exist such as should put a party on inquiry, he is bound to inquire. Green v. Slayter, 4 Johns. Ch. Rep. 46; Farnsworth v. Childs, 4 Mass. Rep. 639; Taylor v. Stibbert, 2 Ves. jr. 440; Lessee of Billington v. Welch, 5 Binney 132; Dexter v. Harris, 2 Mason 536. And if he neglects to inquire, it is at his peril, and he is in such case chargeable, constructively, with notice of what he might have learned on examination. Sterry v. Arden, 1 Johns. Ch. Rep. 267; Frost v. Beekman, 1 Johns. Ch. Rep. 299.

We entertain no doubt that if the defendants had not full and perfect knowledge of all that'was done, they had quite sufficient to put them on inquiry, and to charge them with notice; and if under such circumstances they saw fit to purchase the land, they must be held to have done it at the risk of having their title defeated.

Our conclusion, therefore, is, that the prayer of the bill should be granted.