47 N.H. 235 | N.H. | 1866
The copy of the deed, from Willey was properly received as part of the plaintiff’s chain of title. Harvey v. Mitchell, 31
The objection that the deposition of George A. Whitney was not properly taken on interrogatories seems without foundation in fact; and the exceptions to the second and fourth interrogatories must be overruled, for neither of them, upon any fair construction, is leading, and certainly it was competent for the plaintiff to prove the genuineness of the signatures, and the answer to the third interrogatory shows the witness qualified to give his opinion.
We are unable to appreciate the force of the objection that "the deeds from Charles Bellows to Cady, and from Cady to John Bellows, are a source of title different from what had been before introduced,” for we see nothing in the fact that the plaintiff has set up a claim under conveyances from Thompson and Meserve to prevent him from showing a tax title also, if he has acquired such, or from relying on mere possession. The deed Cady to Bellows is said to have been a quitclaim, but that furnishes no legal ground of objection to its admissibility, and it would be color of title, even if the deed from Charles Bellows conveyed no interest to Cady; Minot v. Brooks, 16 N. H. 374; Rand v. Dodge, 17 N. H. 343 ; and an entry by a grantee under such a deed would give him possession of the whole tract described in it. Tappan v. Tapan, 31 N. H. 53; Gage v. Gage, 30 N. H. 425. As these deeds were offered as part of a chain of title, and appeared by official certificates upon them to have been regularly recorded, it was imnecessary to prove their execution. Bellows v. Copp, 20 N. H. 502; Knox v. Silloway, 1 Fairf. 202; 1 Green. Ev. sec. 571, n.
A practical location is but an actual designation by the parties upon the ground of the monuments and bounds called for by the deed. Clough v. Sanborn, 40 N. H. 316; Colby v. Collins, 41 N. H. 304; Peaslee v. Gee, 19 N. H. 274; 4 C. &H.’s Phil. Ev. 549; Jenks v. Morgan, 6 Gray 448; Cleaveland v. Flagg, 4 Cush. 76; Kellogg v. Smith, 7 Cush. 382; Knapp v. Marlborough, 29 Vt. 282. The testimony of Thompson did not tend to show a practical location of the land conveyed by Willey’s deed. The transaction he states was not a designation of the monuments, &c., called for by that deed, for the deed was not then in existence; Sanborn v. Clough, Peaslee v. Gee; and the prior negotiations must be taken, so far as the construction of the deed is concerned, to have been merged-in that instrument, "the conclusive presumption being that the whole engagement of the parties, and the extent and manner of it, were reduced to writing.” Nutting v. Herbert, 35 N. H. 121; Cook v. Combs, 39 N. H. 597; Galpin v. Atwater, 29 Conn. 97; Parkhurst v. Van Cortland, 1 Johns. Ch. 282; Clark v. Northy, 19 Wend. 323; 4 C. & H.’s Phil. Ev. 519. The deed contained no reference to any monument established by Thomp
Besides, Meserve who was one of the grantees in the deed was not a party to this transaction by Willey and Thompson, and there is no evidence that he ever authorized or ratified it. Prescott v. Hawkins, 12 N. H. 27. This evidence was therefore incompetent to affect the construction of the deed; and it does not tend to show that the summit of Mt. Washington is within the tract conveyed by it, as there is nothing in the testimony of Thompson tending to show that the westerly line, over which they passed, was on the easterly line of Chandler’s Grant: and although the subsequent entry by Thompson under the deed gave possession of all the tract conveyed by it, yet there is no evidence that Mt. Washington is part of that tract.
But the motion for a nonsuit was properly denied, for the case finds that the evidence of Spalding and Davis tended "to show John Bellows’ possession of Mt. Washington at various times between 1851" and 1859,” and this is evidence of his seizin as against the defendant, for at the time of the motion no evidence of title in the defendant appeared; Rand v. Dodge, 17 N. H. 343; Wendell v. Blanchard, 2 N. H. 456; Woods v. Banks, 14 N. H. 113; Jones v. Merrimack Co., 31 N. H. 384; Parker v. Brown, 15 N. H. 185; Lund v. Parker, 3 N. H. 50; Graves v. Amoskeag Co., 44 N. H. 464; Straw v. Jones, 9 N. H. 402; Sparhawk v. Ballard, 1 Met. 95 ; and the deed from John Bellows to the plaintiff would give the latter such seizin as would enable him to maintain this action against one who showed no evidence of title. Edmunds v. Griffin, 41 N. H. 532; Tappan v. Tappan, 36 N. H. 120; Carter v. Beals, 44 N. H. 413; Ward v. Fuller, 15 Pick. 185.
If it was necessary under the statute to prove the handwriting of both of the subscribing witnesses to the signature of Coues, in order to show that his title passed, (see Cram v. Ingalls, 18 N. H. 616, Melcher v. Flanders, 40 N. H. 156,) still no objection is suggested to the proof of the execution by Pmgree, and the deed was admissible to show the conveyance of his interest to the. defendant.
Parol proof of the appointment and commission of Selden would seem incompetent, but it was quite sufficient to show him an acting commissioner or notary. Bellows v. Copp, 20 N H. 503; Prescott v. Hayes, 42 N. H. 56; Forsaith v. Clark, 21 N. H. 422. The second interrogatory in Selden’s deposition is not leading, and the objection
There is nothing tending to show that the deed was fraudulently or intentionally withheld when the depositions were filed; and as an examination of the depositions would have given the plaintiff notice as to the deed, so that he might have procured an order for placing it on file, if it ought to have been filed, and need not have suffered by the omission, we see nothing in the mere circumstance of the neglect to file the deed, that should exclude the deposition. Besides the depositions seem to have been filed under the twenty-sixth rule of court for the purpose of limiting the adverse party in the time and manner of objecting to the caption ; and in such case the only effect of a failure by the defendant fully to comply with that rule would seem to have been a failure to obtain the restriction of the plaintiff under the rule.
Numerous questions have been raised in reference to the evidence of a tax title introduced by the defendants, but several of them have not been argued by counsel, and may possibly not arise or may be obviated upon a trial of the cause ; and upon the merits of some of these we have not deemed it advisable-to pass at this time.
Sargent’s Purchase, though uninhabited, might properly be taxed, Wells v. Burbank, 17 N. H. 393, Russell v. Dyer, 40 N. H. 173, Laws 1831, p. 26, Laws 1805, p. 448, and was made liable to a tax by the legislature. Laws November, 1840, p. 173. In Wells v. Burbank, 17 N. H. 394, it was decided that "it is not necessary to post an advertisement of a sale for taxes in an unincorporated place, which is uninhabitedand we do not understand the authority of this case upon that point to have shaken by any subsequent decision. Russell v. Dyer, 42 N. H. 399. We do not now see any sufficient reason for overruling the case in that particular. It cannot, as in Russell v. Dyer, 40 N. H. 184, be presumed that the legislature did not intend to subject such an uninhabited place to the statutes relative to taxation, since this and other similar places have for many years been specially named in our statutes as objects of taxation, and the taxation without the power of collection by sale would seem futile ; so that upon a careful comparison of the objects and provisions of the statutes in question here, with those considered in Russell v. Dyer, as well as in reasons of public policy, we find sufficient grounds for a distinction between the latter-case and Wells v. Burbank. Under these circumstances, as the doc*-' trine of Wells v. Burbank does not seem likely to work any real practical injustice, and as it is probable that a very considerable nu jnbe¡r off titles to real estate acquired during the twenty years since the. deeisiba in that case was made, and while it has been unquestioned by the eourfc and undisturbed by legislation, may depend upon the rule there laifi
As the sale was in January, 1843, and the Revised Statutes did not take effect till the following March, (Rev. Stat. p. 474, sec. 1,) we arc to look to the statutes in force prior to the Revised Statutes for the provisions to govern the proceedings. By the statute then in force the sheriff was required to deposit with the clerk the lists and other papers containing evidence of his proceedings in the sale of lands for taxes, and it was made the duty of the clerk to receive and preserve them, and to make and certify copies thereof as of other papers on file in the office. Act Dec. 16, 1824; Laws 1830, p. 572. As the statute requiring the deputy secretary of the State to retain in his office a certified copy of the list returned to the collector was not in force at the time of these transactions, (Laws 1847, ch. 495,) we need not inquire whether in case of the loss of the original, resort should be had to that before introducing parol evidence. See 1 Greenl. Ev. sec. 84, &n; 4 C. & H.’s Phil. Ev. 285; Melvin v. Marshall, 22 N. H. 382.
As already stated, upon proof of the loss of the originals in the office of the clerk, their contents may be proved by any secondary evidence, where the case from its nature does not disclose the existence of other and better evidence, and we do not find that any exception in the ease of records like these is made by the common law or by our statutes ; and therefore the plaintiff’s objection that "the record should have been made up anew under the direction of the court,” &c,, and that the record so made up would be the only competent evidence, cannot be sustained. He does not cite any authority for his position, or point out any law or show any usage requiring such a renewal of the record; and it is to be observed that the records so deposited in the clerk’s office are ¿not proper records of the court itself, for they are not made by its offifiers as such, and do not contain its transactions ; they are merely deported in the office of the clerk; so that we see nothing in the nature of the case that should require what neither the common law nor our statutes have prescribed, nor any well settled usage established.
Where * jangle sum is assessed upon an unincorporated place, the hteawer’s warrant is a list within the meaning of the statute, Wells v. Burbank, 17 N. H. 407; Homer v. Cilley, 14 N. H. 100; and if a
The evidence tends to show that the sheriff, within ten days after the sale, delivered to the clerk a copy of his sale, but there is no evidence that it was accompanied by his charges according to the provision of section 4 of the act of 1829, Laws 1830, p. 565 ; that section, however, does not provide that the account of the sale shall be under oath, nor have we found any such requirement prior to the Revised Statutes ; Rev. Stat. ch. 4609 ; but under the act of 1829 the copy of the sale was to be attested.
As Meserve testified that on the day after the sale he filed with the clerk a copy of the record of sale, "with the Patriot and Democrat, and all other papers,” the jury might have found that within ten days after the sale he so filed the copy of his list, if that were essential; but it may not be altogether clear that this is required by the statute. Section 4 of the act of 1829 only provides for the filing of "an attested copy of the sale,” with charges of sale, within ten days after the sale, and section 7 makes it the duty of the collector to lodge with the town clerk, within ten days after the sale, the newspapers containing the advertisement of such sale, and the advertisement which may have been posted up in such town with a certificate accompanying the same, under oath that it was posted up according to law, which advertisement and certificate shall be recorded by the town clerk, and a certified copy of such record shall be deemed sufficient evidence of those facts in any court of law; and the said newspapers shall be kept on file by the clerk. The act of July 1, 1831, Laws, p. 26, gave the sheriff in a case like this, "the same power and authority with respect to the taxes committed to him to collect, which collectors of towns have or may from time to time by law have with respect to the taxes of non-residents ;” and provides that "he shall observe the same directions as collectors of towns are or may from time to time be bound by law to observe in collecting the taxes of non-residents,” &c. ; with a proviso requiring an advertisement in the shire town of the county, as well as in the place where the lands lie. The first section of the statute of Dec. 16, 1824, enacted "that the lists returned by the receiver of non-resident taxes and other papers containing evidence of the proceedings of any former or future sheriff of any county in this State, relating to sales of land by him as sheriff, for State and county taxes, be deposited in the office of the clerk of the Superior Court,” &c. ; and that it "be the duty of the said clerk to receive and preserve the same, and to make and certify copies thereof as of other papers on file in said office;” and the second section provided that such copies might be used as evidence in courts of law in all cases in which the originals might be used,” and with the "same force and effect.” Laws 1830, p. 572. And in Wells v. Burbank, 17 N. H. 410, it is decided that the act of July, 1831, did not repeal this act of 1824.
Besides, it is not entirely certain that the neglect of the sheriff after the sale seasonably to file a copy of his sale, or his list, or the list of lands redeemed, should defeat the title of a bona fide purchaser acquired under a previous sale legally made to him, where such purchaser has himself been in no fault; see Smith v. Messer, 17 N. H. 428 ; Smith v. Bradley, 20 N. H. 120; Scammon v. Scammon, 28 N. H. 432; Pierce v. Richardson, 37 N. H. 310, 312; Hayes v. Hanson, 12 N. H. 290; Cardigan v. Page, 6 N. H. 193; Tucher v. Aiken, 7 N. H. 113; Pinkham v. Murray, 40 Me. 587; Lane v. James, 25 Vt. 481; Taylor v. French, 19 Vt. 49; Sumner v. Sherman, 13 Vt. 609 ; but we do not propose to pass upon this question at the present time.
The clerk at the auction was not an officer making or in any way controlling the sale, and we see no legal objection to his becoming the purchaser.
. It is said that a part of Sargent’s Purchase was annexed to Jackson in 1837. If chapter 336 of the Laws of that year is referred to in this statement, that fact does not appear on the face of the act which merely establishes the location of certain lines of the town. If, however, the effect of that statute was as stated, then the part so annexed would thereafter, for purposes of taxation, cease to be part of Sargent’s Purchase, and become part of Jackson, and liable to taxation as part of that town ; and the residue of the original purchase would for such purposes remain Sargent’s Purchase, precisely, as in the case of any town in the State, after a farm has been severed from it and annexed to an adjoining town; and the'apportionment of Dec. 22, 1840, Laws, p. 499, which fixes the proportion of Sargent’s Purchase at two cents for each thousand dollars to be raised by the State, must be taken to mean Sargent’s Purchase as it existed for purposes of taxation, in the same way as it denoted the towns and other places as they legally existed, or might exist, for such purposes. Whether, in the absence of any statutory provisions, the objection that the deed included less than was sold, could avail between these parties, we have not inquired ; for by the sixth section of the act of 1829, it is provided that when two or more persons are intex-ested in any tract of land so sold, evexy individual may redeem his own part thereof by paying or tendering his proportion of the taxes
Whether upon Meserve’s testimony that he sold "the whole tract except what had been paid on,” naming and excepting the lots upon which payments had been made, and stating "the tract and the amount of taxes and costs,” in connection with his deed, after proof of the loss of the records, the jury could have found that the taxes had been paid for the lots excepted from the sale, and that the residue had been sold for the remainder of the taxes and costs; or whether it was necessary to show these facts more specifically, so that the amounts paid for each portion, the number of acres in each of such portions and in the residue or the relative interests of the owners in the tract, and the amount for which as taxes and costs such residue was offered and sold, should appear, and whether similar facts should have been shown as to the lots described in the deed as redeemed, (see Cardigan v. Page, 6 N. H. 193; Pierce v. Richardson, 37 N. H. 315; Smith v. Bodfish, 27 Me. 289,) we do not deem it advisable now to inquire, as possibly such questions may not arise upon a trial of the case.
If the objection that Sargent’s Purchase was never allotted rests merely upon the position that the lots were not actually marked upon the ground, it is not well taken, for an allotment by plan might indicate with certainty the location of each and every lot, although no lot lines had in fact been run out; and if the lots could be made certain, that would be sufficient; Darling v. Crowell, 6 N. H. 424; Smith v. Messer, 17 N. H. 428; Wells v. Burbank, 17 N. H. 412; Corbett v. Norcross, 35 N. H. 119 ; but whether it was ever properly so allot
The constitution of this State provides in article 44, that "every bill which shall have passed both houses of the general court, shall, before it becomes a law, be presented to the Governor; if he approve, he shall sign it,” &c.; and in article 45, that "every resolve shall be presented to the Governor, and before the same shall take effect, shall be approved by him,” &e. The court will take judicial notice of the fact that David D. Morrill was Governor of the State in 1826, and of the genuineness of his signature. 1 Greenl. Ev. sec. 6. Pinkham’s Grant was a monument described in the titles set up by each party, and the resolution by which it was granted would seem admissible in determining its location, but there is nothing in the case to show that the grants to Rogers and others, to Green and to Martin, were in any way material.
The defendant claims that Sargent’s Purchase is to be run out by the siderial or astronomical meridian, or, as it is sometimes called, by the "true” meridian, and not by the magnetic meridian. Unquestionably, in this State, the courses in a deed are to be run according to the magnetic meridian, unless something appears to show that a different mode is intended in the instrument. 4 Kent, 466, and n.; 4 C. & H.’s Phil. Ev. 550; M’Iver v. Walker, 9 Cranch 177; S. C. 4 Wheat. 444; Brooks v. Tyler, 2 Vt. 348; Owen v. Foster, 13 Vt. 267; Riley v. Griffin, 16 Geo. 147; Young v. Leiper, 4 Bibb 503; 1U. S. Dig. 476, n. 51, and see Jackson v. Stoats, 2 Johns. Cas. 352; Wilson v. Inloes, 6 Gill 163; Clark v. Northy, 19 Wend. 324; Loring v. Norton, 8 Greenl. 69, and Pernam v. Weed, 6 Mass. 133. We do not understand the defendant seriously to question this, but he rests his„ position upon the use of the word "due” in connection with the words descriptive of the coiuses, claiming that "due north” means north by a siderial meridian. It is observable, that, in the description of Sargent’s Purchase, the last coiuse from the southwesterly corner of Jackson is merely "south,” and that the defendants’ view if logically followed out, would seem to require the southern, western and northern boundary lines of the Purchase to be run out by a siderial meridian, while a portion of the eastern boundary is to be laid down according to the magnetic meridian ; a result not particularly desirable in point of convenience, or very likely to have been in fact intended by the parties. The word "due” in this connection means merely "exactly,” and in fact adds nothing to the ■description of the point of compass, for "due north” is exactly north, and so is simple "north.” As the designation of the points of compass is conventional, the word "due” applies with equal propriety to those points as referred to either meridian. We find no evidence that either the law or usage in this State has appropriated the term specially to the siderial meridian. In various cases in our reports, and in many more before our courts, deeds and pleadings have shown a use of the term like
It is impossible for us to ignore the fact as matter of history and of common knowledge, that in this State private and even town boundaries have almost,- if not quite, uniformly been run out according to the magnetic meridian, and we must hold it part of the common law of this State that the courses in deeds of private lands are to be run according to the magnetic meridian, when no other is specially designated, and this seems impliedly admitted by the defendant when he places his claim solely upon a supposed effect of the word "due,” which, as we have seen, does not in our view belong to it.
Any resort to proof of the actual intention of the parties or the surveyor would be attended with all the mischiefs which have heretofore, by the familiar general rule, excluded parol evidence of intention in the construction of deeds, and in our judgment is not permissible. We do not understand that proof was offered of any local custom, and the court, in construing a deed, can hardly need the aid of opinions from experts in surveying, either as to the meaning of file word "due,” or as to the custom or the common law of this State in relation to the general mode of surveying. The present method of surveying the public lands of the United States can have no bearing upon the question here, as it was specially adopted, at a comparatively recent date and long after the system of surveying private boundaries in this State had been established by ancient and long continued usage, if not originally fixed by the common law. The manner in which extensive public boundaries, like those between States and nations, have been surveyed, can have but little weight in the determination of the present question, for in such surveys regard is had to accuracy, permanency and certainty of verification, rather than to the expense or difficulty of the method or its practical convenience or adaptation for common use in our ordinary surveying. As the point in the present case is to be decided according to the law as already established in this State, for the determination of private boundaries, the relative advantages of the two systems are not in question before us, but perhaps upon examination it will be found that in practice neither mode gives perfect theoretical accuracy, and where the question of the adoption of a system is open, it would seem a question of relative- accuracy and general convenience rather than of entire exactness. We are'of opinion that in the grant to Sargent the courses are to be construed as referring to the magnetic meridian notwithstanding the addition of the word "due” to their description.
The starting point for ascertaining the bounds of Sargent’s Purchase
