Barnstead v. Alton , 32 N.H. 245 ( 1855 )

Fowler, J.

The case presents three questions for consideration. First, did the separation of the Hayes farm from Alton and its annexation to Barnstead, in 1840, transfer the settlement of Abigail Twombly, if she then had one in Alton through her father, from Alton to Barnstead ; secondly, did the act of 1841, abolishing the settlement of Abigail Twombly acquired upon her marriage, revive the settlement she previously had through her father, so that her descendants are now chargeable upon that settlement ; and thirdly, were the plaintiffs bound to prove that Lemuel Twombly acquired no settlement in this State from January, 1796, to 1801, as they had averred in their declaration.

By the 7th section of the act of the 16th of December, 1828, Laws of 1829, 301, in force in 1840, when the Hayes farm was severed from Alton and annexed to Barnstead, “ upon division of towns, every person having a settlement in them, but being removed therefrom at the time of such division, and not having a settlement elsewhere, shall have his settlement in that town wherein his former home or dwelling-place shall be upon such division.” The natural and obvious construction of this language is, that upon any division of a town by the separation of a portion of its territory from the rest, every person having a settlement in the divided town, but absent therefrom at the time of the division, shall thereafter have his settlement in that town in wlych his former home or dwelling-place shall fall. Had there been no decisions elsewhere upon the construction of a similar statute, we should not have believed the wTords were susceptible of any other interpretation. But in Hallowell v. Bowdoinham, 1 Greenleaf 129; Fitchburg v. Westminster, 1 Pick. 144, and Lexington v. Burlington, 19 Pick. 426, cited by the plaintiff’s counsel, a different construction was given to the Massachusetts statute of 1793, almost identical in phraseology with that now under consideration; and it was in effect holden in those cases, that a town was not divided, within the meaning of this clause of the statute, unless separated into two or more parts so nearly equal that each was made into a town. We have carefully examined the decisions in those cases, and are satisfied neither with their reasonings or their result.

In Hallowell v. Bowdoinham, where the question was similar to the one raised in the case before us, the court, after remarking that the language we have quoted from the act of 1828, “ seems to have in view such a division of a town as shall produce two or more towns, composed of the same territory which formed the original town,” say, that the question is virtually settled by the decision in Groton v. Shirley, 7 Mass. 156. On referring to that decision, it appears to have been upon the construction of another clause of the statute, and with reference to an entirely different matter. In Groton v. Shirley it was only decided that where a part of one town was annexed to another, a person living on the territory annexed, and having his settlement in the town to which the annexed territory belonged before its annexation, had his settlement transferred to the town to which the territory whereon he resided at the time was annexed, by virtue of the annexation, precisely as he would have had if the territory annexed had been made into a new town. The whole effect of the decision was, that the inhabitants of territory severed from one town and annexed to another, had their settlements thereby changed. It by no means followed that persons who had gained a settlement while living on that same territory, but who were then resident elsewhere, did not also have their settlements changed, by virtue of the clause of the statute now under consideration, upon the annexation.

The decision in Fitchburg v. Westminster seems to rest mainly upon the assumed hardship of having the settlement, as well of the former residents as of the present occupants, transferred with the annexed territory, and upon the respectable character of the court in Hallowell v. Bowdoinham. In Lexington v. Burlington the decision in Fitchburg v. Westminster is said to be entirely decisive.

In our judgment, the question before us is determined by the clear and definite terms of the statute itself. The language is simple, unequivocal, unambiguous, and fairly capable of only one interpretation. A town is divided whenever any portion of its territory is separated from the rest, without regard to the comparative size of the parts into which it is severed. The statute expressly enacts, that, upon such division, all persons then absent, but having a settlement in the town whose territory has been dissevered, shall afterwards have their settlement in the town where their former dwelling-place may happen to be. Such is the natural and ordinary import of the words of the statute, and all our reasoning from the circumstances of the subject matter goes to satisfy us that they were intended to be employed in their natural and ordinary sense. The principle apparently intended to be established by the Legislature was simply this : That whenever an old town, in which absent persons, who had or might become paupers, had their settlement, was in any way broken up, the settlement of those persons should follow their former homes. And so far from there being any hardship in this, it would seem manifestly just and proper. Their settlement was generally gained by birth or residence in those homes, and it is obviously far more just-and equitable that they should follow those homes for their future support, than that they should follow an old town organization, with which they may never have had any other connection than to have been born or to have lived for a longer or shorter period within its territorial limits. Besides, their settlement in the old town grew out of their birth and residence, or the birth and residence of their ancestors, in those very homes. The town to which those homes have been annexed is forever afterwards to enjoy all the profits and advantages of them, and should therefore take all their disadvantages and incumbrances. If this consideration was sufficient to induce the court in Groton v. Shirley to hold, as they in effect have done, that within the meaning of the second clause of the 7th section of the act of 1828, a new town is created whenever part of one old one is severed therefrom and annexed to another, it ought surely to avail as sufficient reason for giving to the language of the first clause its natural and ordinary signification.

It was conceded in the argument, and is admitted in all the cases in Massachusetts and Maine, that if a new town is made from the severed portion of an old one, the settlement of absent paupers goes with their homes into the new town. It is difficult to perceive why, if a new town is created within the meaning of the second clause of the statute whenever part of one old town is annexed to another, for the purpose of changing the settlement of resident inhabitants, the same reasoning should not construe a new town to be created under like circumstances, for the purpose of changing the settlement of nonresident paupers. But what reason exists for changing the settlement of nonresident paupers, where the severed territory is incorporated into a new town, which does not exist quite as strongly for changing such settlement where the severed territory is annexed to an old town ? None occurs to us. On the contrary, it would seem far more just and reasonable that the old town, strengthened by an increase of its territory, wealth and population, should support the poor formerly resident upon its new territory, than that those persons who happen at the moment of its incorporation into a new town to be resident upon it, should be subjected to that burthen ; and the town from which the territory is severed is not less truly divided in the one case than in the other.

But the construction of the statute for which the defendants contend, if carried out as it might be in many cases, completely nullifies and destroys the statute. Suppose that one piece after another, year after year, is severed from an old town and annexed to the adjoining towns, until the whole is annexed, what then becomes of the settlement of nonresident paupers ? Or, what is not unfrequently the case, suppose the whole town is divided into four or five tracts, and these are severally annexed to adjoining towns at the same time, where are absent paupers to be supported ? It is evident their settlement must be wholly lost, and the burden of their maintenance thrown entirely upon the counties where they happen to be found. Such a result seems to us clearly to demonstrate the unsoundness of the construction which leads to it. It may be said that the Legislature would provide for such a contingency, but this could hardly be done otherwise than by reenacting and applying to that particular case the precise provisions, as we regard them, of the statute now under consideration.

Such being our views of the design and intention of the Leglature in its enactment, and of the principle intended to be established by the clause of the statute in question, as well as from the simple and obvious meaning of the language used, we are compelled to the conclusion, that whenever a town is in any way divided, whether the dissevered portion is incorporated into a new town, or joined to an old one, the settlement of all such persons in the old town as are then resident elsewhere, follows the location of their former homes. If those are disannexed, their settlement goes with them, whether into a new town, with a new name, or into a new town, composed of the severed territory and an old town, with the old name. We are, therefore, of opinion that the annexation of that part of the Hayes farm where her father formerly lived, to Barnstead, in 1840, transferred the settlement of Abigail Twombly from Alton to Barn-stead, if her settlement was at that time in Alton. We are confirmed in the result at which we have thus arrived by an examination of the provisions of the Revised Statutes on this subject, which do not seem susceptible of any other construction than that which we have given to the act of 1828.

As to the second question raised in this case, it is an established rule that a wife by her marriage acquires the settlement of her husband, if he has any in this State. Revised Statutes, chap. 65, sec. 1; Comp. Stat. 157. And by a settlement acquired in one place, all former settlements are lost. Rev. Stat., chap. 65, sec. 4 ; Comp. Stat. 158.

From these principles it would follow, that if Lemuel Twombly, jr., had a derivative settlement in Rochester at the time of his marriage, acquired under laws passed before 1796, his wife by her marriage with him before the passage of the act of 1841, (2 Laws 531, chap. 605,) lost her previous settlement and acquired that of her husband, and, under the last mentioned statute, the liability of the town in which her husband’s settlement and her own existed, ceased from its passage.

The marriage of the pauper’s father is stated to have occurred before 1823, consequently the mother had lost her settlement in Alton, and enjoyed her husband’s settlement in Rochester nearly twenty years before the change in the law took place, and could not afterwards have any derivative settlement in Alton, unless the effect of the law of 1841 was not only to destroy her husband’s settlement in Rochester, but to revive and restore to her a settlement which had been lost almost twenty years. That law does not profess to design to accomplish any such result, and to give it such a construction would be clearly wrong.

Upon the remaining point, whether the plaintiffs were bound to prove that Lemuel Twombly gained no settlement in this State between January, 1796, and 1801, we think there can be no doubt. On general principles, the plaintiff affirming the existence or non-existence of facts, or a state of facts essential to his right of recovery, is bound to prove the existence or nonexistence of what he avers, and what is essential to his right of recovery.

Nor does it change the rule that the averment is negative. The proof may be more difficult, but is not the less imperative. Less evidence may be sufficient, but the plaintiff is not the less bound to satisfy the jury that what he alleges is true.

In Wilmington v. Burlington, 4 Pick. 176, which was a suit for the support of a pauper, on the trial of which a question almost precisely like that now under consideration was raised, the court say: “ It was incumbent on the plaintiffs to show, first, that the father of the pauper had not a settlement within the commonwealth; for though this is a negative in appearance, yet it is proved by showing where he did belong. Otherwise the plaintiffs would always rest their case, upon proving that the mother had a settlement in the defendant town.”

When the plaintiffs ground their right of action upon a negative allegation, and when, of course, the establishment of this negative is an essential element in their case, then the proposition affirmed, though negative in its terms, must be proved by the party who states it. 1 Greenleaf’s Ev. 93, § 78, and authorities.

The same degree of evidence as in case of an affirmative allegation can hardly be expected, but it must be supported by prima fade proof. Perhaps it would be sufficient if such evidence were offered as, in the absence of counter testimony, would afford ground for presuming the allegation to be true. 1 Greenleaf’s Ev. 94, see. 78, and authorities.

That it was necessary for the plaintiffs to aver and prove the settlement of Abigail Twombly in Alton, and that her husband had gained no settlement elsewhere in this State, is clear from the statute and adjudged cases. Rev. Stat., chap. 65, sec. 1; Salem v. Andover, 3 Mass. 436.

The language of the statute is: “A married woman shall have the settlement of her husband, if he has, or shall acquire any in this State, otherwise her settlement at the time of her marriage shall continue.”

In this case, if Lemuel Twombly acquired any settlement in this State after January 1, 1796, his son and his son’s wife would have it; and before the plaintiff’s could claim to rely on the settlement his son’s wife had at her marriage, it was incumbent on them to show that her husband’s father acquired none in this State, as well from January, 1796, to 1801, as after that time.

Such being our views of the validity of the various objections to the plaintiff’s right to recover, there must be

Judgment for the defendants.