Hodgdon v. Shannon , 44 N.H. 572 ( 1860 )

Nesmith, J.

This was a writ of entry to recover a tract of land in Portsmouth, purporting to be part of the Pickering farm, so called,-which was set off to the demandant upon execution, as the property of John N. Sherburne, the judgment debtor, in the year 1857. The defendant claims the title to the demanded premises as tenant of certain devisees of Elizabeth Sherburne, who, by her will, approved May 12, 1846, gave her real and personal estate to these devisees, being the children of her son, the said John N. Sherburne, who was made, by virtue of said will, the trustee, to hold the property for the benefit of said devisees.

The case finds that so long ago as 1817 the said Elizabeth and her son, John N. Sherburne, were tenants in common, and owners in equal shares of the -whole of said Pickering farm, of which the demanded piremises were a part; and that the said farm was then in their possession; that on the twenty-sixth day of April, 1828, the said John N. conveyed, by deed of mortgage, the said piremises, with other parcels of land, to said Elizabeth, to secure the payment of the sum of $5,000 to said Elizabeth.

At the trial there was no proof of any indebtedness offered beside what was contained in the mortgage deed. The excepition is taken by the defendant that there was no sufficient description of the debt in the deed; therefore, no valid mortgage shown. The familiar definition of a mortgage is said to be any conveyance of lands, intended by the parties, at the time of making it, to be a security for the payment of money, or the doing of some prescribed act. 1 Wash. R. P. 479, ch. 16, sec. 7. It is sufficient that there be a subsisting debt between the.parties at the time of the contract, which the parties intended to secure, capable of being enforced in rem, or in personam- The form in which the indebtedness exists is not material. 1 Wash. R. P. 481, see. 9 ; Lund v. Lund, 1 N. H. 39 ; Weeks v. Eaton, 15 N. H. 145. In this case it was properly left to the jury to find whether there was an original genuine indebtedness from John N. to his mother, sufficient to sustain the deed. The deed,, when under the signature of the grantor, authenticated by his seal, is construed as his admission to the indebtedness contained in its condition, and is competent prima facie evidence of such fact, and throws the burthen, of evidence on the other side to explain it away.

The questions whether the deed of mortgage could be presumed to be extinguished by the payment of the debt through lapse of time; or, whether any part of the principal debt or interest had been paid within twenty years; or whether intended as a cover, therefore fraudulent; or, whether the mortgagee had actually foreclosed the mortgage for condition broken, and subsequently claimed it as owner, and exercised the ordinary acts of ownership over the premises, were all proper for the jury in cases of this kind. Jackson v. Wood, 12 Johns. 242; Giles v. Barmore, 5 do. 545; Ang. on Lim. 493.

"We do not see' as the plaintiff was unreasonably limited in any inquiry necessary for him to determine the validity either of the mortgage debt or the deed founded on it. By the verdict of the jury we are to infer both were established. Nor does it appear that any evidence was offered at the trial that any conveyance was made of the share of Elizabeth to her son, John N., prior to the mortgage of 1828. Whether any such conveyance ever existed it is not very material to inquire, as it was competent for said John N. to convey, by mortgage or otherwise, any interest he had in the land to his mother, or any other person.

The plaintiff objects to several acts of ownership, all tending, in the form of admissions or otherwise, to establish the foreclosure of said mortgage, and a good title in Elizabeth Sherburne, when she made her will, in 1845. ’ The plaintiff alleges that the evidence of the policies of insurance and note and payment of assessments, &c., given, wei’e incompetent testimony for the purpose of showing actual ownership of the premises in question in Elizabeth Sherburne.

Both parties resort to the proof of legitimate acts of ownership. It is stated that the plaintiff offered evidence tending to show that his debtor paid taxes assessed on the land in dispute. This was suitable evidence for the jury to weigh. Little v. Downing, 37 N. H. 355; Farrar v. Fessenden, 39 N. H. 277; Carr v. Dodge, 40 N. H. 403. The payment of assessments for losses would be evidence of the same character, while the description of the property in the application for the policy of insurance, and the claim of ownership, the giving the note binding the party to pay losses, are all direct acts of ownership, and explanatory of the possession of the party of equally as high a nature. In McCall v. Nealey, 3 Watts 69, there was an entry by the party, and payment of taxes was relied on to define the extent of the ouster. Nepean v. Doe, 2 Smith L. C. 493, 496; Ang. on Lim. 425.

The indorsement, as shown here on the policy of insurance to the mother, in the hand writing of her son John N., would have the tendency to show knowledge of her claim and the nature of it, and would so far be construed as an admission consistent with ownership in her, and in disparagement of any claim in himself. The deed of John N. of his son Charles’s right in the estate, under the circumstances detailed in the case, seems to us to be competent evience to be weighed by the jury for the same purpose. The same may be said of the lease, whether a perfect or imperfect instrument. It is enough that it showed an act of ownership in conflict with the plaintiff’s claim.

We understand the ruling of the presiding judge to he correct in admitting Mrs. Sherburne’s declarations, upon the ground that she was first found by the jury to be in actual possession of the premises under her deed. Such declarations are received as explanatory of the character of the possession, and as giving color and limits to the same. In this instance, there was no dispute about boundary or lines; the more material question was whether she was claiming under the deed in question, or otherwise. Declarations consistent or inconsistent with this claim might be offered by either party. 1 Greenl. Ev., secs. 109, 110; Currier v. Gale, 14 Gray 504.

The exception of the plaintiff that the executor did not file his bond, as required by statute, can not avail, as the evidence shows that the will was proved; and the law is settled that the proof of the will duly passed the estate to the devisees therein named, under whom the defendant claims. 1 Greenl. Ev., sec. 550; 2 Greenl. Ev., secs. 372, 673. Nothing more was required on the part of the executor to perfect the title of the devisees, than to file the will for probate, and to prove it. This duty he is presumed to have performed, as it is usually done before filing his bond.

The plaintiff also further excepts, that said John N. Sherburne could not convey any part of the estate as trustee, as he had not filed his bond, according to the requisition of the statute in such cases provided. The answer to this objection is, that it is enough for the defendant to show that he was a trustee de facto, or acted in that capacity. Jones v. Gibson, 1 N. H. 262; Johnson v. Wilson, 2 N. H. 205 ; Tucker v. Aiken, 7 N. H. 113. The court say, in Portsmouth’s Petition, 19 N. H. 117, the acts of an officer de facto, holding office by color of an election or appointment, are valid as to the public and third persons, and can not be called in question collaterally and except in a proceeding against the officer. Bean v. Thompson, 19 N. H. 290. Ve do not see, therefore, that any objections can reasonably be urged to the validity of John N. Sherburne’s deed to the surviving devisees, as we understand the law. The will had vested in Charles (the son,) an undivided share of the farm. The father, John N., was the legal heir to the estate of his son Charles, he dying over twenty-one years of age, and he had the power of releasing the same share to the surviving devisees.

The plaintiff further excepts, averring that the court erred in instructing the jury that the paper title was good for one half of the land, at the death of Elizabeth Sherburne, by the mortgage. We do not think the exception states quite fairly what the court did say. By reference to the case it will be seen both parties had the fair presumption arising from the facts.. Whether there has or not been an ouster is a question of fact, which it is the province of the jury to decide. "What facts will authorize a jury to presume an ouster is often a matter of law for the court to decide. Taylor v. Horde, 2 Smith L. C. 497. Here the plaintiff contended that, upon the evidence, the jury ought to presume that the entire title to the whole',land had in some way passed to the said John N. Sherburne. Whether it had or had not, was a question submitted to the jury, with the question also of adverse occupation by the said John N. The plaintiff had the benefit of the fact that in 1828 John N. Sherburne undertook to convey by mortgage the whole of the Pickering farm ; but a mortgage of the whole estate by one tenant in common is not conclusive evidence of an ouster. Wilson v. Colleshaw, 1 Harris 276. Upon the execution of the mortgage the whole legal estate in any event was presumed to vest in Elizabeth, the mortgagee. The possession of the mortgager, the mortgagee had the right doubtless to treat as a disseizen at her election ; or the mortgager may have been in possession for a time, with the privity and assent of the mortgagee, and in subordination to her title. Then the mortgagee may have set up an exclusive possession, and obtained an adverse occupation of the premises, and established a full and perfect foreclosure. Or, take the plaintiff’s view of the case: The mortgager, by some unequivocal act, hostile to the title of the mortgagee, and brought home clearly and distinctly to her knowledge, may have taken open and adverse possession of the premises, and terminated the holding, as mortgager, and actually disseized the mortgagee. The act which is thus to change the character of the possession must be a clear, open, and explicit denial of the mortgagee’s title, and a refusal to hold under it; and until such actual disseizin by the act of the mortgager, or by the election of the mortgagee, the possession is not adverse, but in privity with the mortgagee; and the statute of limitations does not begin to run. Tripe v. Marcy, 39 N. H. 445, and authorities. Whether, under the circumstances as proved, there had been a foreclosure of the mortgage, was a question of fact, properly submitted to the jury.

Judgment on the verdict.