Nutting v. Herbert , 37 N.H. 346 ( 1858 )

Fowler, J.

It was settled by this court in a former case, transferred in the same suit between these parties [Nutting v. Herbert, 35 N. H. 120] that the description in the defendant’s deed to the plaintiff included the Merrill place as part of the premises conveyed; that, although parol evidence to contradict or vary the terms of the deed, by showing that part of the premises included within the description was intended to be excepted from the grant, could not be received to avoid a technical breach of covenants; yet, upon the question of damages in a suit for a breach of the covenants of seizin and good right to convey, it was competent to receive evidence to show that nothing had in fact been paid for a portion of the premises described in the deed, because it was known and understood by the parties that this portion was not to pass by the conveyance, as it had been previously sold by the grantor, and was only included in the description through error, mistake and inadvertence; and that, if the jury should find no consideration to have been paid for the portion of the premises in relation to which a breach of covenants was claimed, the plaintiff would be entitled to recover nominal damages only.

Upon the subsequent trial of the action before a jury the instructions of the presiding judge seem to have been in strict accordance with the previous decision of this court. We are unable to discover in them anything of which the defendant can rightfully complain, or to which any well founded objection can be offered.

We are also of opinion that the court below properly declined to give the instructions for which the defendant asked.

The evidence tending to show that, at the time of his purchase, the plaintiff understood that he was buying and paying for the whole property described in the defendant’s deed, with the other evidence offered by the plaintiff, was clearly competent to be submitted to the jury, and from it they might properly find that he actually did pay for the premises in controversy, which were part of the entire property particularly described in the deed.

The fact that the Merrill place was occupied by him at the time of the purchase, and that the plaintiff was aware of the occupancy, might have been sufficient, as between the plaintiff and Merrill, to put the former upon inquiry as to the title to that place, but afforded no conclusive presumption, as between them, that Merrill had a deed thereof, or that the plaintiff knew him to own it. Notice of the possession of land by a third person is in general sufficient to put a purchaser upon inquiry, and, if he neglect it, to charge him constructively with notice of any title under which the tenant may have entered; but it is not necessarily, even as between the purchaser and tenant, constructive notice of the existence of a valid title in the tenant, since the presumption of notice arising therefrom may be rebutted. Much more as between the purchaser and his grantor. Rogers v. Jones, 8 N. H. 264.

But the question of constructive notice of the existence of a title in Merrill to the premises occupied by him, and the subsequent acts of the plaintiff in permitting a sale and change of occupancy of those premises, without objection or claim of rent, had nothing to do with the principal inquiry before the jury, which was whether any and what consideration was actually paid by the plaintiff’ for those premises, except so far as they might incidentally or collaterally bear upon it. Even if the plaintiff supposed, and had good reason to believe, that Merrill owned those premises at the time of his purchase, yet if the defendant insisted that the fact were other-wise, and that he could and would give a perfect title thereto, and thereupon the plaintiff’ purchased and paid him for them, taking the defendant’s warranty deed as his reliance, the fact that the plaintiff might have had sufficient grounds to suspect the validity of the title thus attempted to be conferred upon Mm, is no reason why the defendant should violate his covenants with impunity, or retain the consideration received for those covenants under such circumstances. Had the plaintiff and defendant both perfectly understood, at the time the defendant conveyed the Merrill place to the plaintiff', that it had been previously conveyed by the defendant to Merrill, if the defendant asked and the plaintiff actually paid him $125, or any other sum, for a warranty deed of that place, we are aware of no legal principle which could justify the defendant in retaining the money, -without making good the title to the premises for which it was paid, which he had warranted.

The last clause of the proposed instructions involved a. denial of the precise construction of the defendant’s deed, established by the former decision of this court, and was, therefore, properly refused. It is quite apparent, moreover, we think, that if the whole of certain premises are conveyed for a given price, the necessary presumption is that some portion of that price is paid and received for every portion of the premises; and that the burden of proof must be upon the party who undertakes to rebut and overthrow that presumption.

It is not for a party to complain that the personal knowledge of jurors was appealed to by himself unsuccessfully. Having chosen to adopt, and been permitted without objection to pursue, an unusual course of argument, and having therein ventured to rely upon a species of evidence usually regarded as loose, uncertain, and dangerous in its character, he cannot take advantage of his own act, and avoid a verdict against himself on account of his own conduct in the management of the cause before the jury.

The suggestions and remarks of the court upon the trial, as reported before us, do not seem to have been improper, or calculated to prejudice the rights of the defendant. They appear to have been appropriate to the positions of counsel, and demanded by the circumstances of the case. Besides, observations of the court upon mere matters of fact, and their commentaries upon the weight of evidence and its application, are understood to be addressed to the jury merely for their consideration as the ultimate judges of matters of fact, and are entitled to no more weight or importance than the jury, in the exercise of their own judgment, choose to give them. They neither are, nor are understood to be, binding upon them, as true and conclusive expositions of the evidence; and, therefore, whether perfectly correct and appropriate or not, a bill of exceptions does not lie to such observations and commentaries. Carver v. Jackson, 4 Peters 80; exparte Crane, 5 Peters 198; Evans v. Eaton, 7 Wheaton 356, 426; Commonwealth v. Child, 10 Pick. 252; Frankfort Bank v. Johnson, 24 Maine 490; Flanders v. Colby, 28 N. H. (8 Foster) 34; Patterson v. Colebrook, 29 N. H. (9 Foster) 94.

As the instructions given were, in our judgment, substantially correct, and those asked for properly refused, there must be

Judgment for the plaintiff upon the verdict.