Carr v. Dodge , 40 N.H. 403 ( 1860 )

Nesmith, J.

The first question presented for consideration in this case is: Can the plaintiff recover, in this form of action, that portion of the income of the farm for the year 1854 which remained as undivided common stock at the time of the decease of his testator, James Dodge, on the 10th of January, 1855, the commissioner estimating the value of this property at $154.08 ?

We suppose it to be well settled..-that the relation established by law between the owners of this property at the time of the death of the father, was that of tenants in common. Upon this point the authorities appear to be decisive. “ Two or more persons, hiring land by an instrument under seal, and agreeing to pay rent in a certain proportion of the crop, are held to be tenants in common, not partners in the crop, until a division is made.” Putnam, v. Wise, 1 Hill 234. “If one let his farm to another, the use of it to be paid for in one half of the crops, the lessor at most is only a tenant in common with the lessee of the crops, until his portion is severed.” Hurd, v. Darling, 14 Vt. 214; Walker v. Fitz, 24 Pick. 191. “In contracts of this nature, as to the crops or income, the owner and occupant are tenants in common during all the stages of the growth and preparation of said crops for use, and until a separation or severance by the parties. This rule better protects the rights and interests of both parties, and is more salutary in its operation and effects than any other rule. In general, this interest or property in the crops is assignable, and liable to attachment.” Carter v. Jarvis, 9 Johns. 143.

The relation of the parties being thus established by law to the income of the farm for the year 1854, the next question is : Can this form of action be maintained ? The ordinary presumption of law is, that a sole possession by one tenant in common is held in the right of both tenants. Buckmaster v. Needham, 22 Vt. 617. “ One tenant in common in possession is not liable in trover by his co-tenant for his portion of the crops grown upon the land.” Kersel v. Earnest, 21 Penn. 58; Moores v. Bunker, 29 N. H. 420. In an action to recover damages for the conversion of a chattel, if the plaintiff be the several owner, he would be entitled to recover upon the proof of the demand and refusal; but if his interest be joint, and had never been separated, he could not recover against a co-owner, without proving also that the conversion wént to the destruction of the chattel, or the entire exclusion of his right. Allen v. Harper, 26 Ala. 126; Kenniston v. Ham., 29 N. H. 501. The plaintiff will recover, when the joint owner has taken the whole property from him by action of replevin. 3 Kern. 173. “One tenant in common cannot maintain trover against his co-tenant of the same chattel for any act less than the destruction of his interest therein.” Hurd v. Darling, 14 Vt. 214. “But a sale of a chattel by a co-tenant shows a kind of dominion unjustifiable and inconsistent with the rights of the parties.” Hill, on Sales; Mumford v. McKay, 8 Wend. 444, 403; Weld v. Oliver, 21 Pick. 559; Wilson v. Reed, 3 Johns. 174; Blake v. Mulliken, 14 N. H. 213.

This case does not find such a conversion as the law contemplates should exist, in order to entitle the plaintiff to recover any portion of the crops or income of the farm for 1854, by the action of trover; and therefore the sum of $154.08, or the claim to this amount of crops, must be disallowed, and cannot be recovered in this action.

1. It appears by the defendant’s exceptions that the plaintiff offered evidence to prove that some of the stock on the farm where the testator and defendant lived, was taxed to said testator, and that he paid it; which was objected to by the defendant, but admitted by the commissioner. This evidence was doubtless admissible, as it tended to prove ownership in the property in question. It would not be conclusive. As a general rule, few would pay taxes upon property they do not claim to own. Hence the reception of evidence of this character, as an act to show ownership, was right. Little v. Downing, 37 N. H. 366.

2. To identify the books of the selectmen of G-offstown, Mr. McDougall was offered, and permitted, against the defendant’s exception, to testify that he was one of the acting selectmen. The objection was that the plaintiff could not be permitted to prove the authority of McDougall without the record. This ruling of the commissioner was correct. It is sufficient to show that the selectman acted in that capacity, and was an officer de facto. This is proper in all cases where merely third parties are interested. Blake v. Sturtevant, 12 N. H. 573. A party who is bound to show the authority of a town officer may rest on proof that he is or was an acting officer. Pierce v. Richardson, 37 N. H. 306. This authority may be shown by parol. Barton v. Williams, 5 B. & Ald. 395.

3. Was Bodnia Nutt rightly admitted to testify, upon the execution of his release to the plaintiff'? We think the ruling of the commissioner in this instance correct. The interest of the witness was remote and contingent. The interest which disqualifies a witness must be direct and certain. It is not enough if it be uncertain, remote or contingent. He was, therefore, a competent witness. Manchester Bank v. White, 30 N. H. 456; Mill Dam Foundry v. Hovey, 21 Pick. 417. Our statute now allows this witness to testify, and leaves no doubt on the subject.

4. The fourth exception suggests matter entirely addressed to the discretion of the commissioner. He applies a test, for the purpose of obtaining the truth from the witness. We see no objection to the application of the practice adopted in this case, nor can we imagine any great evil to spring out of it.

The exceptions are, therefore, overruled, and there must be judgment for the plaintiff for $341, and interest from the date of the return of the report of the commissioner.