Webber v. Merrill , 34 N.H. 202 ( 1856 )

Pekley, C. J.

In 1807 John Webber took a conveyance from O. F. Weld, of twelve hundred acres of land, described in the deed as “ all the land voted to Daniel Brainard by the proprietors of Rumney.” There is nothing in the case to show what land had been voted to Brainard by the proprietors of Rumney ; but John Webber, having this deed, entered upon a certain tract of land in Rumney and took actual possession of it, by running it out into lots, and marking the lines of the lots on the ground ; and some of the lots he afterwards sold. This was sufficient evidence for the jury to find that he claims to own the land, including lot 6 and the locus in quo ; and the running out of the lots and marking the lines would give him an actual possession and seizin as to third persons having no title or previous possession. Woods v. Banks, 14 N. H. 101.

There is no evidence reported tending to show that John Webber abandoned his claim and possession in lot 6, unless he surrendered and yielded it to the plaintiff after he took the tax title.

The defendants claim under a deed of one hundred and twenty-seven acres, from D. Homan to Jeremiah and John Cotton, dated in 1821. It does not appear that Homan had any title, nor what land his deed covered, unless it can be inferred that it covered the land in dispute, from the fact that in the autumn of 1845 it was run out so as to include the land in controversy ; and the case reports no evidence that the land in dispute was entered on and claimed under the deed of Homan till the autumn of 1845, and until that time no conflict appears to have arisen between the title derived under the deed of Weld to Webber, and the title derived under the deed of Ho-man to J. & J. Cotton.

If the title of the plaintiff under the sale for taxes was void, and he took under that deed no possession which divested the seizin of John Webber, then the evidence would well warrant the jury in finding that John Webber died seized of lot 6 ; and in that case the land would descend to his heirs-at-law, Aaron Webber, the plaintiff, and his brother Moses; and the instruction of the court was quite correct that there was evidence from which the jury were at liberty to find that the plaintiff was entitled to recover one half of the damages proved, as one of the two heirs at law of John Webber. Tenants in common should join in trespass qu. cl., the injury in that case being to their possession, which is joint; but if one tenant in common sue alone, and the defendant, instead of pleading the nonjoinder in abatement, plead to the action, the plaintiff will recover for his share of the damages. Addison v. Overend, 6 T. R. 766.

On the other hand, the evidence that John Webber, after the plaintiff took his tax title, acted as his agent in taking charge of the land, and that Moses Webber, after his father’s death, acted in the same capacity, and frequently entered by the plaintiff’s request to see if trespasses had been committed, and particularly in May, 1845, before any entry under the defendant’s title, went on the land to show the bounds, would be quite sufficient evidence for the jury to find that the plaintiff entered under his tax title, and became possessed of the land in dispute, claiming to own it as sole tenant. If the jury returned a verdict for the whole damage, they were well warranted in doing so by the evidence.

The court, with the assent of the parties, had directed the jury to return the special fact, whether the warrant to the collector was under seal. Having agreed on the general question of damages, the jury disagreed on the particular question referred to them. They came in and received new instructions. No complaint is made that these instructions were incorrect, and, being still unable to agree on the special fact, they were discharged from further considering that question, and merely returned the general verdict on which they had agreed previous to the new instructions. We see no reason to apprehend that the jury were misled, or that any injury was done to the defendants by the course taken in this instance.

It is, perhaps, doubtful whether, as a general thing, it is judicious to embarrass the jury with more questions and issues than are raised on the record. There is danger that their deliberations may sometimes be confused by attempting to examine too many points in the same cause. In this instance, as is always the case in our practice, the special inquiry was directed by assent of the parties, and no private instructions were given to the jury.

The circumstance that it was not convenient for the counsel of the defendants to attend till the cause was ended, can be no ground for disturbing the verdict.

The cause having been committed to the jury on Saturday, the verdict might well be returned on Sunday, if the jury were unable to agree before. Hoghtaling v. Osborne, 15 Johns. 119; Butler v. Kelsey, 15 Johns. 179; Heller v. English, 4 Strob. 586.

Judgment on the verdict.