Farrar v. Fessenden , 39 N.H. 268 ( 1859 )

Fowler, J.

The plaintiff having shown a conveyance of the demanded premises to Wendell Durant, in 1825, an entry by him thereon, claiming title under that conveyance, in 1830 or 1831, and a subsequent conveyance thereof from Wendell Durant to himself, in 1857, although the latter was made more than twenty years after possession shown in the grantor, made a primd facie title in himself, and the nonsuit was, therefore, properly refused. Whittemore v. Bean, 6 N. H. 50; Smith v. Smith, 11 N. H. 459.

The statute expressly makes the affidavits of the party making an entry into land for the purpose of foreclosing a mortgage thereon, and of the .witnesses thereto, as to the time, manner and purpose of such entry, and a copy of the published notice, verified by affidavit' as to the time, place and mode of publication, recorded in the registry of deeds for the county in which the land is situate, competent evidence of such entry and publication; and it is not necessary to produce on trial either the original notice, or the papers in which it has been published. Rev. Stat., ch. 131, sec. 16 ; Comp. Laws 292.

In Little v. Downing, 37 N. H. 355, it was holden that taxation of land for a long series of years to an individual, and his payment of those taxes, were competent evidence of his assent to and approval of the assignment of such land to him in severalty, as the owner thereof — in other words, of his ownership thereof. On the same principle the taxation of the premises in controversy to the various persons claiming title thereto under John Durant, for a long series of years, and the payment of those taxes by them, or by one of them under whom the defendant claimed, were competent evidence, tending to show ownership, or at least a claim of ownership, which was the material point in the present case, in those persons.

The records of taxes were properly received to prove the taxation, which, being matter of record, could be proved in no other way, unless the loss of the records were first shown.

The evidence of the existence of the mortgage of the demanded premises, and of the mortgage debt to David Dutton, and their subsequent assignment to Daniel Adams, was manifestly competent, as tending to explain the occupancy of those premises by Hunt under Dutton and Adams. So, too, the discharge and assignment of that debt and mortgage by Adams, were competent, m connection with the mortgage of the same premises about that time to Clark Parlcei’, and tended to show the payment of a portion of the consideration for that mortgage to have been made by the removal of a prior incumbrance.

By the statute of this State it is made the duty of registers of deeds, in the several counties,: to record all deeds and instruments brought to them for that purpose, and to give copies thereof, when required. Rev. Stat., ch. 22, sec. 5; Comp. Laws 83; N. H.Laws, Ed. 1830, 471, sec. 7.

"Where it is made the duty of a public officer to record deeds and other instruments, and to furnish copies thereof, an examined copy of any instrument thus recorded may be received in evidence, in any proper cas,e, without proof of the original. 1 Gr. Ev. secs. 91, 484, 485; Hastings v. Blue Hill Turnpike Co., 9 Pick. 80; Woods v. Banks, 14 N. H. 101; Ferguson v. Clifford, 37 N. H. 86.

Where reference is made in a deed of land to another deed, as recorded in a particular book and page of the registry, for a description, a copy of the record of the deed thus referred to is admissible in evidence, in.connection with the deed in which the reference is made. Clough v. Bowman, 15 N. H. 504.

After proof of the original deed to himself, or of his title, by descent or devise, a party may use an office-copy of a deed to which he is not a party, but which constitutes a part of his claim of title, as prima facie evidence, without showing the loss of the original. Harvey v. Mitchell, 31 N. H. 582; Homer v. Cilley, 14 N. H. 85.

Upon these principles we think the copy of the deed from Wendell Durant to John Durant was clearly admissible, whether, at the time of its record or execution, it had a seal upon it or not. It wras an office-copy of an instrument purporting to convey lands, duly recorded at the period of its date in the registry of deeds for the county in which those lands were situate, furnished by the officer having charge of the records, and authorized and required by law to furnish copies thereof; was a part of the defendant’s claim of title, or color of title, and had been referred to in a deed, properly introduced as part of that title, as containing a description of the premises conveyed therein.

The testimony of Hunt and others tended to show that John Durant was in possession of the demanded premises, claiming to own them, in 1833, and that they had continued to be constantly, openly, visibly and exclusively occupied by persons claiming under him, from that period until the date of the plaintiff's writ, in March, 1857, more than twenty-three years; that this continued occupation was under deeds from John Durant and his grantees, wherein the premises were described substantially as in the plaintiff’s writ, purporting to convey the same by metes and bounds, and with covenants of warranty. Such continued and exclusive possession, under claim and color of title, was necessarily adverse, and, upon the authority of numerous decisions in this State, sufficient to give the defendant, who claimed under this possession, a good and perfect legal title to those premises, without regard to the question of colorable title in John Durant. Hunt occupied in 1834 under Samuel Pai’ker, who held under a deed from John Durant; and John Durant being shown to have been in possession in 1833, his deed gave at least color of title. Lemuel Parker’s subsequent re-conveyance to John Durant, who then immediately conveyed to Clark Parker, through whom the defendant claims, did not change or injuriously affect the colorable title originating in 1834, since possession constantly accompanied it. Gage v. Gage, 30 N. H. 420; Newmarket Manufacturing Co. v. Pendergast, 24 N. H. 54; Hoag v. Wallace, 28 N. H. 547; Tappan v. Tappan, 31 N. H. 41; Cobleigh v. Young, 15 N. H. 493; Grant v. Fowler, (ante, page 101).

It has been suggested in the plaintiff’s argument that the evidence did not show an actual occupation, by those under whom the defendant claims, for more than twenty years, of that portion of the lot in controversy lying south of the fence erected by Hunt. This is true, but Hunt entered in 1834 as tenant of Lemuel Parker, under a deed from John Durant, who was in possession in 1833, conveying the whole lot by metes and bouuds, and continued his occupation under deeds of the same character for more than twenty years. This gave him constructive possession of all the land which the title under which he entered and occupied embraced, because he must be presumed to have entered and occupied claiming according to that title. Riley v. Jameson, 8 N. H. 23; Towle v. Ayer, 8 N. H. 59; Beck v. Young, 11 N. H. 485; Bailey v. Carleton, 12 N. H. 15; Sneed v. Parker, 3 N. H. 49; Hoag v. Wallace, 28 N. H. 547; Gage v. Gage, 30 N. H. 420; Tappan v. Tappan, 31 N. H. 41.

.Besides, the evidence showed that much the largest portion of the lot, including all the cleared' lands, and a considerable portion of the woodland, were enclosed by a fence, which was j>ermanently maintained for twenty-three or twenty-four years, and this might well have been found by the jury to have been such an open, visible possession of the lot as to give notice to everybody of a claim of title by the tenant to the whole.

The evidence, then, tending to show John Durant in possession, in 1833, of the demanded premises, a conveyance thereof by him to Lemuel Parker, and subsequently to Clark Parker, and an occupation by the grantees of John Durant, through whom the defendant claims for more than twenty successive year’s prior to the date of the plaintiff’s writ, the verdict rendered by consent for the defendant must stand, without reference to the colorable title of John Durant, under what purported to be a deed from Wendell Durant on the 6th of December, 1833.

But we think it entirely clear that the instrument of conveyance from Wendell to John Durant, whether it had a seal upon it, when executed, or when recorded, or not, and whether Wendell Durant, and the plaintiff' as his grantee, would or not be estopped to deny its validity as a deed, was at least sufficient to give to John Durant, and those claiming under him through it, by continued adverse possession for more than twenty years, color of title. The evidence tended strongly to show that John Durant entered on the premises claiming to hold and own them under this instrument. It was promptly recorded in the proper place of record for conveyances of these premises, so that all the world had notice of its existence and the claim made under it. In the mortgage to Clark Parker, through whom the defendant claims directly, the land is described as the same conveyed to the mortgagee by this instrument, and reference is made not only to its date but to the volume and page in which it was recorded — all showing conclusively that John Darant claimed to own.the premises by virtue of it.

Now, all the authorities agree that it is wholly immaterial, as to the effect of an entry and long continued occupation under a colorable title, whether that title be valid or not, and whether the instrument cx’eating it be defective or not. Riley v. Jameson, 3 N. H. 23; Towle v. Ayer, 8 N. H. 59; Buck v. Young, 11 N. H. 485; Bailey v. Carleton, 12 N. H. 15; Sneed v. Barker, 3 N. H. 49; Grant v. Fowler, (ante, page 101.)

Thus, a married woman’s separate deed of her land, though absolutely void from its inception as a conveyance of the title, will give a color of title to the grantee, sufficient to extend an adverse seizin, by construction, to the limits of the land described ixx it. Sanborn v. French, 22 N. H. 249.

Ixx Jackson v. Newton, 18 Johns. 355, the precise question involved in the px’esent case was decided by the Supreme Court of New-York. There the jury found that the deed under which the defendant had occupied had no seal xxpon it. Spencer, C. J., in delivexlng the opinion of the coux’t, says: “ In the point of view in which we are now considei’ing the case, it is immaterial whether the instrument were sealed or not. Had there been a seal, the title of Joshua Newton ” [under whom the defendaxxt there claimed, as the defendant here claims under John Durant] “ would have been perfect without a possession, and in that light only is it material. In Jackson v. Wheat,” [18 Johns. 40 ] “ we decided, upon the authority of sevex-al cases there referred to, that to constitute an adverse possession it was only necessary that it should have been under claim and color of title. We said that the defendant was under no necessity of producing the deed under which his grantor claimed title, though called for by the plaintiff. Suppose, we said, the deed had been lost, or, when produced, was found to be defective — that could not have destroyed the effect of the defendant’s possession; and we referred to repeated decisions, that a continued possession for twenty years, under claim of right, ripens into a right of possession which will toll an entry; and again, that it had never been considered necessary, to constitute an adverse possession, that there should be a rightful title. Whenever this defence is set up the idea of such a title is excluded; the fact of possession, and the quo animo it was commenced and continued, are the only tests.”

It is not necessary that an adverse possession, to be available within the statute of limitations, should commence or be continued under effectual deeds. Though the possessor claim under written evidence of title, and on producing that evidence it prove to be defective, yet the character of his possession, as adverse, is not affected by the defects of his title. If the entry be under color of title, the possession will be adverse, however groundless the supposed title may prove to have been. Lafsombais v. Jackson, 8 Cow. 589; 13 Johns. 118; 3 Wend. 337; 6 Cow. 751; 1 Cow. 276; 1 Cow. 605; 5 Cow. 346; 5 Cow. 483.

Applying these doctrines to the case before us, it was wholly immaterial, on the question of adverse possession, whether the instrument of conveyance from Wendell to John Durant was ever sealed or not. If it were sealed, the defendant’s title would have been perfect without any possession. If not, the evidence was conclusive to show that John Durant occupied the premises, and made repeated conveyances thereof, claiming to hold them in fee by virtue of it; that he so expressly declared in his conveyance to Clark Parker in 1841, and that Clark Parker and his grantees, including the defendant, have continued to occupy them from that time to the present, claiming to hold and own them under this title from John Durant. There is no room for doubt, therefore, that the evidence tended strongly to show a continued occupation for twenty-four years, by those claiming the legal title in the demanded premises, through the color of title in John Durant, by virtue of the deed to him from "W ended; and occupancy and color of title are the only tests of effectual adverse possession. With these views there must be

Judgment upon the verdict.