Melcher v. Flanders , 40 N.H. 139 ( 1860 )

Bellows, 3.

This is a writ of entry for a lot of land in Haverhill, and the action was tried upon the plea of nul disseizin. The demandant claimed by virtue of two mortgages, one by John Palmer to Joseph Hardy, Jr., dated December 15, 1854, and assigned to the demandant September 20, 1856, and the other by S. H. Melcher to the demandant, dated October 20, 1855. It appeared on the trial that Joseph Hardy, Jr., had been in possession of the land for several years next preceding December 11, 1854, but claiming it as tenant for years, and paying rent to the town of Haverhill; and on December 11, 1854, he conveyed the land in fee and with warranty to John Palmer, who thereupon made the mortgage before stated, to secure the payment of the price, and entered upon the land, made valuable improvements upon it, built a large house, and occupied the land either alone or in conjunction with S. H. Melcher until late in the year 1856 ; that on the 7th day of March, 1855, the said Palmer conveyed the land by deed of that date, in fee and with warranty, to 8. EL Melcher, who, on the 20th day of October, 1855, mortgaged the same to the demandant to secure the payment of a note of $800 made by said S. EL Melcher.

The defence set up was, that the plaintiff’s-title, if he had any, was merely an estate for years under a lease from the town of Haverhill, dated January 26, 1829, to John Mudgett, for nine hundred and ninety-nine years, and that being but a chattel interest, the demandant could not maintain a writ of entry; and the defendants also claimed that Flanders, one of the defendants, had, before the commencement of the suit, acquired the title of Mudgett under this lease.

Upon an examination of the ease the court is of the opinion that neither of these grounds of defence can avail the defendants upon the issue which was fried. The entry of Palmer under the deed from Hardy, purporting to grant the fee, is presumed to be according to his title, until the contrary is shown. Towle v. Ayer, 8 N. H. 59; Gage v. Gage, 30 N. H. 420; Tappan v. Tappan, 31 N. H. 41. It would be competent for the defendants to show that he did in fact enter, claiming a term of years only; and proof that he recognized the title of the landlord by paying rent to the town of Haverhill would be evidence of such restricted claim. But no such evidence was offered; on the contrary, it appeared that no rent was paid by Palmer or S. H. Melcher, and that both of them exercised acts of ownership over the land inconsistent with a claim of a tenancy for years. Of these acts, the deed of Palmer to S. H. Melcher, and the mortgage from S. H. Melcher to the demandant are .examples ; and it is quite clear, we think, that there was evidence from which the jury might legally have found that both Palmer and 8. H. Melcher occupied the land, claiming a fee, according to their paper title. If this he true, then, as the verdict was by consent for the plaintiff, it stands as if the jury bad found an entry and claim, according to their immediate title. The mortgage from Palmer to Hardy, made before Palmer’s entry, may, and probably does stand upon a different footing, as Palmer was not then in possession claiming a-freehold, and as Hardy’s possession was that of a mere tenant for years, paying rent to the landlord. But of this it is not material to inquire, because the interest derived from the mortgage of S. H. Melcher to the demandant is sufficient to maintain the action.

But it is said that the defendant, Flanders, derives title from Mudgett, whose possession was earlier than that of Palmer, and he produces a deed from Mudgett to him, of February 21, 1857, by which Mudgett releases to him all his interest in the land, though at the same time claiming none, and receiving nothing for the release; and it appeared that twenty-five years ago Mudgett was in possession of the lot and occupied it for many years, until he sold to George W. andD. Glines, when he yielded to them the possession, and they went into the occupation of it; but it also appeared that when Mudgett entered, and while he was in possession, he claimed under a lease from the town of Haverhill, as before mentioned, for nine hundred and ninety-nine years, and that when he sold to Glines he delivered over and assigned to them the lease; and therefore, as Mudgett claimed only a term of years, it would avail the defendants nothing, as a defence under the plea of nul disseizin, to show that Mudgett conveyed his interest to the defendant, Flanders, because, being a tenancy for years, the defendants could avail themselves of it only by a plea of non-tenure special; Sperry v. Sperry, 8 N. H. 477; Gibson v. Bailey, 9 N. H. 168, 174; Mills v. Pierce, 2 N. H. 9; Stearns on Real Actions 202, 232; Higbee v. Rice, 5 Mass. 302; Cocheco Manufacturing Co. v. Whittier, 10 N. H. 305; Hale v. Glidden, 10 N. H. 397; and this renders immaterial the question whether, in case Mudgett had no title whatever, his possession was lost by abandonment. We are, however, inclined to think that the jury might legally have found for the plaintiff on that point. Blaisdell v. Martin, 9 N. H. 253.

With these views, and for the purposes of this case, it is not necessary to determine the question, whether the term of years held by Mudgett had been conveyed by him to persons under whom the plaintiff claims. But we have considered the question, and have arrived at a conclusion which gives the same result. Upon the loss of the lease and assignment being shown, the copies from the registry are admissible, even if the deeds had not been in the demandant’s chain of title. The assignment by Mudgett to George W. and David Glines, although not acknowledged, was good and valid between the parties, and as against purchasers, even for a valuable consideration, with notice of the assignment; Cutting v. Pike, 21 N. H. 347; Hastings v. Cutler, 24 N. H. 481; and we think that upon the evidence reported the jury might properly have found such notice. The deed, then, conveyed nothing to the defendant, for Mudgett then had nothing to convey; and had it been otherwise it could have availed nothing under the general issue. Nor could it avail anything to show that the demandant’s predecessors held and claimed only a term of years, or that his own title was actually no greater, any more than to show that he had really no title at all. The only material inquiry was whether Palmer was in possession claiming an estate equal to a freehold at the time he conveyed to S. H. Melcher, and on that point the verdict is conclusive.

It is contended that the seizin of the demandant is rebutted by proving title in the town of Haverhill; but this is allowed only in cases where there is no actual, but merely a constructive seizin. When the demandant, as in this case, has actual seizin, such proof is not admissible. Enfield v. Permit, 8 N. H. 512; Hutchins v. Carleton, 19 N. H. 517. If there was any evidence tending to prove an abandonment of the possession under the plaintiff’s claim, which, to say the least, is doubtful, it must be taken that the verdict finds against the defendant upon that point; and beside, no act of Palmer or S. H. Melcher, after the mortgage to the demandant, could affect him.

The testimony of one of the subscribing witnesses to the mortgage of S. H. Melcher, that he subscribed it as a witness, and saw said Melcher sign, and that the other witness was present and also subscribed it, is sufficient proof of the execution, inasmuch as it proves the signing by Melcher, and that it was witnessed by two witnesses. 1 Stark. Ev. 330; 1 Gr. Ev. 569; Russell v. Coffin, 18 Pick. 143; Jackson v. Sheldon, 9 Shep. 569; 3 Wils. 38. There must, therefore, be

Judgment upon the verdict.