Forest v. Jackson , 1876 N.H. LEXIS 155 ( 1876 )

FROM CARROLL CIRCUIT COURT. The plaintiffs' right to recover must depend upon the construction that is to be given to the deed from Isaac Davis to Phebe Richardson, dated December 14, 1844, recorded April 16, 1874, purporting to convey one undivided half of the premises from which the logs in dispute were taken. In this deed the grantor conveyed "to Phebe Richardson during her natural life, with the right of occupation and improvement to her husband, Philip Richardson, during the life of the said Phebe, and at her decease to the heirs of her body, to their heirs and assigns forever in the proportion following, — to wit, to her son, Robert Andrews Richardson, three parts, to each of her other children one part, the following described real estate" (then describing it), and at the close of the description and before the habendum the following: "In case of the death of the said Robert Andrews Richardson before he arrives to the age of twenty-one without issue, then the oldest surviving son of the said Phebe Richardson shall have three shares to one share to each of the surviving children; and in case the said Phebe shall leave no son at her decease, who shall live to the age of twenty-one years, then the real estate shall be equally divided among her surviving children, to their heirs and assigns forever."

The habendum was as follows: "To have and to hold the aforegranted and bargained premises, with all the privileges and appurtenances thereof, to the said Phebe Richardson, during her natural life and at her decease to her children, as above, their heirs and assigns, to their use and behoof forever."

The case finds that this deed was the title upon which the plaintiffs relied, and that the trial was conducted by the parties upon the theory that Phebe Richardson took a life estate only under the deed to her and her husband, Philip, was tenant by the courtesy after her death. Whether she took anything more than an estate for life was not raised upon the trial.

The plaintiffs, in their argument, now claim that Phebe Richardson under that deed, took a fee, and that consequently her husband, Philip, upon her death, was tenant by the courtesy during his life, and until his death in May, 1874. Assuming that this line of argument is now open to the plaintiffs, of which there is great doubt, it is important to determine what were the rights of Phebe Richardson under that deed. The well recognized rules laid down for the construction of deeds justly said to be founded in law, reason, and common sense require that the whole deed shall be considered and construed together, and not any particular portion of it by itself; that every part shall, if possible, be made to take effect, and every word to operate; that it shall operate according to the intention of the parties, if by law it may; that if it cannot operate in one form, it shall operate in that which by law will effectuate the intention. Richardson v. Palmer, 38 N.H. 212.

It is a settled principle, that, in the construction of deeds and wills effect must be given to every word and clause, if practicable; and no implication can be made which would have the effect to annul any clause of a will which, without it, admits of a reasonable interpretation and effect. Drew v. Drew, 28 N.H. 494.

Applying these principles to this case, I think there can be no doubt that she took simply an estate for life. That seems to have been the manifest intention of the grantor; and, upon the authorities cited, and also upon the authority of Dennett v. Dennett, 40 N.H. 498, S.C.,43 N.H. 499, and Kenniston v. Leighton, 43 N.H. 309, no other conclusion can be reached.

If, then, she took an estate for life, upon her death the plaintiffs became entitled to the immediate possession of it; and, unless there is some paramount title, they are entitled to recover in this action. But the case further shows, that the defendant claimed title to one undivided half of the premises, by virtue of a deed from Isaac S. David executor of the will of Moses David, to him, dated November 29, 1845, and to the other undivided half by virtue of a deed from Philip Richardson to him, dated February 19, 1850, recorded September 13, 1853, and that since the date of his deed from Philip Richardson, February 19, 1850, "he has been in the exclusive possession of the premises, trimming up the trees, cutting out the underbrush, doing up the fences, paying all the taxes upon the premises, and claiming to own the whole."

It also appears that Philip Richardson was in possession of the premises at the date of his deed to the defendant. That deed was color of title; and the defendant, having been in possession, as the jury under the instructions of the court have found, openly, adversely, uninterruptedly claiming the whole estate himself, denying the plaintiffs' title, refusing to permit them to enter for more than twenty years prior to the commencement of this suit, gives him a good title as against some of these plaintiffs. The instructions of the court on these points were in accordance with the authorities, and were sufficiently favorable to the plaintiffs. Bailey v. Carlton, 12 N.H. 9; Wendell v. Moulton, 26 N.H. 41; Little v. Downing, 37 N.H. 355; Farrar v. Fessenden, 39 N.H. 269; Gage v. Gage, 30 N.H. 420.

It is not necessary that an adverse possession, to be available within the statute of limitations, should commence or be continued under effectual deeds. If the entry be under color of title, the possession will be adverse, however groundless the supposed title prove to be. Farrar v. Fessenden, supra.

It was not necessary for the defendant to show actual knowledge by or notice to the plaintiffs that he claimed the premises adversely. Possession under his deed, which was duly recorded, was constructive notice to all the world, the presumption being that he was ill, claiming under and according to his deed.

But it is said by the plaintiffs that, during a portion of the time after the date of the deed, they were under a disability, and consequently the statute does not run against them; and it appears that Robert A. Richardson is now 37 years of age, and Albion P. 31. The deed being only twenty-four years old at the time of the commencement of this suit, the plaintiffs' position would be well taken were it not for sec. 2, ch. 202, Gen. Stats. That provides that the action must be brought within five years after the disability is removed. More than five years have elapsed since the disability as to them was removed, and consequently they have no title to the premises in question, nor to the trees, which are the subject-matter of this suit. Whether or not the defendant has acquired the title to the premises as against the female plaintiffs it is not necessary to decide. The plaintiffs claim a joint ownership in the property converted: failing to show that, they must fail in this suit.

As to the admissibility of the testimony of Albion P. Richardson, there can be no question. He was one of the parties; and it was competent as tending to show that he at least knew that his father was claiming the right to sell the premises described in the deed from Davis to his mother. It was in the nature of an admission by him, and was competent to be considered by the jury as bearing on his claim; and if not competent, was immaterial, and of a character not to prejudice the other plaintiffs. As to the correctness of the ruling of the court excluding the question to the defendant on cross-examination, there can be no doubt. The question was, "Do you know whether your valuation was increased, for the purposes of taxation, after you bought this land?" It was immaterial whether the defendant's valuation was increased or not. The fact that it was or was not increased would have no legitimate tendency to show whether or not he paid the taxes upon the premises in question, which was the important inquiry. The valuation of his other property might have been increased or decreased after this purchase. The only proper way to show whether the property was taxed to him or not was by the records.

CUSHING, C. J., concurred.