Busby v. Littlefield , 33 N.H. 76 ( 1856 )

Eastman, J.

Some of the most important matters set forth in the complainant’s bill are admitted by the defendants’ answers. The deed from Trickey to Busby of the hundred foot lot, and the boundaries of the same ; the erection and occupation of the buildings; the bargain for a portion of the lot only, and the error in all of the deeds from Busby to Jordan, and Jordan to Crawford, and Crawford to Littlefield, are facts not in dispute. It is conceded by the defendant that Littlefield has a legal title, derived from Busby, through Crawford and Jordan, to sixty-eight feet of the lot, for which no consideration has been paid, and which in equity belongs to Busby. It is also conceded that when Crawford took his deed from Jordan he was aware of the mistake, and knew that he was receiving a deed of land which he did not purchase. The same may likewise be said with regard to Littlefield; he was well aware of the error in the deeds, and he took his, containing the error, with a fall knowledge that it covered a lot three times as large as that which he purchased. Whatever may have been the controversy between the parties originally, when the suit at law was commenced, it is now narrowed down to one question only, and that is, whether the bargain between Busby and Jordan was for thirty feet front on Chesnut street, or for thirty-two ; and consequently whether the deed from Busby to Jordan should have been drawn for the thirty or thirty-two feet ?

The description in the deed is as follows: “ A certain lot of land on the west side of Chestnut street, in said Dover, with the buildings thereon standing, beginning at the southeasterly corner of lot conveyed to me by John Trickey, by deed dated August 29, 1844, thence on my line northeasterly, thirty feet, to F. W. Baptist meeting-house, thence northwesterly one hundred feet, to land of Parker Clay, thence southwesterly thirty feet, to southwest corner of my lot, thence southeasterly one hundred feet, to the bound begun at. The whole of the lot so conveyed to me by said Trickey being subject to a mortgage to the Savings Bank for the county of Strafford, for $600, and to Oliver Libby for the sum of $500.”

The error in the deed consisted in this: By beginning the first course at the corner of the lot, whereas it should have begun, according to the complainant’s statement, seventy feet from the corner ; or, according to the defendants’ admissions, sixty-eight feet from the corner.

In deciding the question, the first point which arises is this: To what extent are the answers to be regarded as disproving the plaintiff’s case ?

As a general rule, where a replication is put into an answer, and the parties proceed to a hearing, all the allegations of the answer which are responsive to the bill, will be taken as true, unless they are disproved by two witnesses, or by one witness with corroborating circumstances. 2 Story’s Eq. Juris, sec. 1528; 2 Danl.’s Ch. Prac. 983; Gresley’s Eq. Ev. 4; Hollister v. Barkley, 11 N. H. 501; Dodge v. Griswold, 12 N. H. 573; Hughes v. Blake, 6 Wharton 468; Hart v. Ten Eyck, 2 Johns. Ch. 92; Miles v. Miles, 32 N. H. 147.

When, however, the answer of the defendant is not responsive to the bill, but sets up affirmative allegations, in opposition to or in avoidance of the plaintiff’s demand, and is replied to, the answer is of no avail in respect to such allegations; and the defendant is as much bound to establish the allegations so made, by independent testimony, as the complainant is to sustain his bill. 2 Danl. Ch. 984, note; Hart v. Ten Eyck, 2 Johns. Ch. 88; also note to that case; Wakeman v. Grover, 4 Paige 23; Bank v. Lewis, 8 Pick. 113; Paynes v. Coles & al., 1 Munford 373; Thompson v. Lamb, 7 Veasey 587.

Story, in speaking of the rule that an answer when responsive to the bill is evidence for the defendant, says: “ We are, however, carefully to distinguish between cases of this sort, where the answer contains positive allegations as to facts responsive to the bill, and cases where the answer, admitting or denying the facts in the bill, sets up other facts in defence or avoidance. In the latter case the defendant’s answer is no proof whatsoever of the facts so stated; but they must be proved by independent testimony.” 2 Story’s Eq. Juris., sec. 1529.

In Beckwith v. Butler, 1 Washington 224, a bill was filed in the Court of Chancery in Virginia against an administrator for distributive shares of an intestate’s estate. The answer, among other things, set up a gift from the intestate to the administrator of a bond, which formed the principal part of the personal estate. This allegation was not supported by proof, and the chancellor directed the administrator to account for the amount of the bond. The defendant appealed to the Court of Appeals, and the decree was affirmed. In delivering the opinion of the court the President observed, that “ the answer of a defendant in chancery is not evidence where it asserts a right affimatively, in opposition to the plaintiff’s demand. In such a case he is as much bound to establish it by independent testimony, as the plaintiff is to sustain his bill.” And he adds that it would be monstrous indeed if an executor, when called upon to account, were permitted to swear himself into a title to part of the testator’s estate.

Upon the doctrine of the authorities, as well as upon the equity of the case, it would seem that these answers, so far as they set up an error in the deeds different from that complained of by the plaintiff, and different from that appearing by the deed of Busby to Jordan, and thereby making a new demand, should be established by independent testimony.

The complainant in his bill puts the specific interrogatory, whether the bargain was not for a lot of land thirty feet only in width, on Chestnut street ? And the defendants, instead of answering directly and positively that such was not the bargain, “ affirm” that the bargain was for thirty-two feet on Chestnut street; and they then proceed to detail various circumstances and conversations with Busby tending to show that the bargain was as they state it.

It is true that the purport of their answers is to deny the case made by the plaintiff in his bill, but there is not that direct, positive and unequivocal denial, which would appear to be required by the rule in order to make the answers conclusive upon the complainant, unless controlled by evidence. The defendants, in fact, set up a new case. They admit that there was a mistake in the deed from Busby to Jordan, and that the error was knowingly continued in the subsequent deeds. They concede that the attorney, in drawing the deed, commenced at the wrong point, but they “ affirm” that instead of commencing at the point designated and claimed by the plaintiff, he should have commenced two feet further south, and thus give them two feet more of the width of the lot. This is the demand which they make ; and making it, it seems to us that they should prove it. That there was a mistake in the deed, all admit; but when the defendants make a new demand, not indicated by the deed, nor intimated by the complainant, by which they are to acquire a part of the estate of the complainant, they should establish their claim by evidence independent of their own answers. It is very clear that if the complainant by proper metes and bounds had given them a deed of only thirty feet front, and they should have filed their bill to have the deed reformed, so as to make it thirty-two feet, they would, in opposition to an answer denying the fact, have to prove by unequivocal testimony that such was the bargain, and that an error was committed in drawing the deed. Or, supposing this complainant to have given the defendants a deed of thirty lots of land, in some township, numbering them, and after-wards to have filed his bill, alleging that there was an error in the deed, and that it should have included ten lots only, and a specific interrogatory should be put as to this fact; and the defendants should answer by saying that they admitted there was a mistake in the deed, but they affirmed that the bargain was for twelve of the lots, and that the deed should be for them ; would such an answer be responsive to the bill, so as to entitle them to a decree without proof to sustain their averments ? It appears to us not, and that case seems to us to be this.

But even admitting that the answers are responsive to the bill so as to fall within the rule that they must be overcome by the testimony of two witnesses, or one, and corroborating circumstances, we are of opinion that the rule is complied with by the complainant’s evidence.

The testimony of Mr. White that he read the deed over in the presence of Jordan; of Ross and Smith, the witnesses to the execution, that the deed was read in their presence by Busby, when Jordan and his wife were in the room, and all were listening to the reading, and the distinct recollection of both of the witnesses that the deed was only thirty feet front, would seem to render it next to impossible that Jordan should not have known that it was thirty feet which were specified, and not thirty-two ; especially if there had been any bargain for thirty- two feet. Moreover, if Jordan or either of the other defendants had supposed that their line extended two feet beyond the bank and to the wood-shed of Busby, it is almost incredible that they should have suffered the witness Hayes to have built the fence on the thirty-foot line, where he did ; and especially that they should have permitted it to remain there for two or three years, till after the filing of the plaintiff’s bill, and never have intimated that the fence was upon their land. It is certainly very unusual, too, that they should never complain of the cultivation up to the thirty-foot line, by Busby and Hayes, as testified to by Clay and Hayes ; or of the occupation by Busby and Hayes of the two feet beyond the wood-shed for a passway.

It is, also, a significant fact that no one of these defendants has ever called upon Mr. White in regard to the error in the deed, and that no testimony whatever has been taken on the part of the defence.

It is likewise a very singular procedure that Crawford, with a knowledge of the error in the deed, should have taken his, with a like error, and that Littlefield should also have suffered the thirty feet only to be named in his deed. We know nothing of these defendants any further than what appears by the papers in this case. It seems that they are not at present on friendly terms with this complainant; and we think that the course which they took in continuing the error in the deeds betokens quite as clearly an imaginary idea that the whole Trickey lot could be held by the deed, or that some advantage could be gained, as that it was a mere mistake, that could and would be corrected at any time. Littlefield, himself, admits that he supposed he could compel Busby to make the correction.

After reading over these answers and the evidence several times carefully, we are constrained to say, that the conviction is clear to our minds that there has been either a mistake or misrepresentation as to what Busby said in regard to the thirty-two feet. We are satisfied that there never was any bargain for thirty-two feet, but that it was only for the thirty feet, as stated in the deed; and we think that Busby should have relief in the premises.

As Littlefield has released all claim upon Crawford and Jordan in consequence of their covenants of warranty, a decree may be made for Littlefield to quitclaim, directly to Busby, the seventy feet. To this course there can be no objection, and it is sustained by authority. De Riemer v. Cantillon, 4 Johns. Ch. 85; Gillespie v. Moon, 2 Johns. Ch. 585; Prescott v. Hawkins, 12 N. H. 19; Keisselbrack v. Livingston, 4 Johns. Ch. 144; Craig v. Kittredge, 3 Foster 231.

In addition to the decree for Littlefield to quitclaim the seventy feet, a perpetual injunction against the suit at law should also be granted.