Swain v. Saltmarsh , 54 N.H. 9 ( 1873 )

Sargent, C. J.

The deed in this case was well enough upon its face to convey a lot of land such as is described, if there had been any such lot in town ; but certain facts were proved in evidence concerning the land, viz., that there was no separate lot of land in Benton set off or allotted to the right of John Fancher, to which the deed could apply, and that the only right which he had in town was an undivided right, which he owned as one of the original proprietors of the town, to a tract of land of about 7000 acres, which had never been lotted or divided among the proprietors, or their grantees, in any way whatever. It appeared that this tract of land was large enough to give to the right of each proprietor about 117 acres, when divided. Can the call in this deed be answered, and the deed be held effectual, to pass this right ?

Putting ourselves in the place of the parties to the deed, and especially in the place of the grantor, with a knowledge of the facts which he must be presumed to have known about his own title, and we think the description of the deed may be answered by this right. Each proprietor had a right to have 117 acres set out to him, of this undivided land, and it seems that this right was described in the deed, not as allotted or set off, but simply as set to the right of each proprietor; and the right of John Fancher to have 117 acres of this undivided land allotted or set off to him as his share was spoken of as the tract set to the right of John Fancher, and as containing 117 acres more or less; a pretty indefinite mode of expression to be sure, but which must, we think, be interpreted to mean, the right which John Fancher had to have a tract of 117 acres set off, or set out and allotted to him, as his just proportion and share of the 7000 acres of undivided proprietary lands in the town of Benton. When these facts are all understood, and also the other fact that there was nothing else to which the deed could refer, there seems to be no great difficulty in understanding what was meant by the deed.

This is in accordance with the general rule in such cases, that proof is admissible of every material fact that will help to identify the person or thing intended, and which will enable the court to put themselves as near as may be in the situation of the parties to the deed ; and then when the court, by the aid of all these facts, can ascertain the intention of the parties, and especially of the grantor, they will construe the deed so as to give effect to that intention when they can find enough in the description, after rejecting all the particulars in which it is false or mistaken, to identify the land. Lane v. Thompson, 43 N. H. 320; Tenney v. East Warren Lumber Co., 43 N. H. 343; Goodhue v. Clark, 37 N. H. 526; Shore v. Wilson, 5 Scott’s N. R. 958; Emerson v. White, 29 N. H. 482, 498; Webster v. Atkinson, 4 N. H. 21; Bullen v. Runnels, 2 N. H. 258; Cocheco Manf’g Co. v. Whittier, 10 N. H. 305; Richardson v. Palmer, 38 N. H. 212; Harvey v. Mitchell, 31 N. H. 582.

We think the ruling was right, that this deed applies to and conveyed this interest in land, which was thus proved to be in Benton, in which John Fancher had a right.

II. Has there been any want or failure of consideration in this case, either total or partial ? There has been no rescinding of the contract in this case. If any fraud was practised upon the defendant, when he ascertained the fact, when the fraud was discovered, he might have rescinded the contract by giving back or tendering all that he had received under the contract. If he was thus defrauded, he could, upon discovery of the fraud, have given back or tendered a deed of the premises, in proper form, to convey all the right or interest which he received by his deed, and given notice of his intent to rescind the contract, and that he should not pay the note or any part thereof. But he has done nothing of that kind. He has held his deed, and still holds it, and the rights and interests which it conveys. There has been no failure of consideration, either total or partial, for the defendant holds, now, all the consideration for this note that he had in the first place, or has ever had. Nor was there a total want of consideration, as we have seen. Was there a partial want of consideration ? — for that is the only question that remains.

In Butler v. Northumberland, 50 N. H. 33, this question was considered," where the suit was for goods sold and delivered, and the defence was that the goods were not according to the sample; that they were inferior in quality to the kind of goods that were bought; — and it was held, in that case, that such evidence might be admissible, as tending to show a partial want or failure of consideration. The distinction was there noticed between suits on promissory notes, and on contracts respecting personal property and services. In this state, it was formerly held that, in a suit upon a promissory note given for the purchase-money, alike in case of chattels or real estate, if there was a partial failure of consideration, which could be ascertained by mere computation, the deduction might be made ; but if it was a matter of unliquidated damages it could not be considered, but the defendant must resort to his action for a remedy. Drew v. Towle, 27 N. H. 412; Riddle v. Gage, 37 N. H. 519.

But, in 1861, a statute was passed which is embraced in the Gen. Stats., ch. 201, sec. 11, as follows: “When, in an action upon a bill of exchange, draft, or promissory note, a total want or failure of consideration would be a defence, the defendant may, upon filing a brief statement thereof with his plea, prove a partial want or failure of consideration in reduction of the damages.” Under this statute, the case of Nichols v. Hunton, 45 N. H. 470, was decided in 1864, which is a case very similar to this. That was a suit upon a note given for a horse that was fraudulently represented to be kind and sound, when he was not so ; and the court held that this was a case of partial want or failure of consideration under the statute, and the verdict for the plaintiff was set aside. The case of Clough v. Baker, 48 N. H. 254, stands upon ground entirely different from this case; and, while it stands well upon its own ground, it is not an authority liei’e.

Sanborn v. Osgood, 16 N. H. 112, is directly in point, that where a purchaser is induced by the fraudulent representations of the seller to make a purchase of land, and the farm he bought was worth some-tiling, there could be only a partial failure or want of consideration, which, as the law was then held to be, could not be deducted because the amount was unliquidated and unascertained. The facts were held to show a partial want of consideration, which then could not be deducted, but which now, under our present statute, may be.

The evidence offered in this case, to show a partial want or failure of the consideration for the note, was competent under our statute, and under the brief statement in this case; for we think a-partial want or failure of consideration may be proved under a brief statement that there was a total want or failure of the same.

III. Wo see no objection to the amendment which was asked for, nor any grounds for the motion in arrest. This case stands, then, precisely like the case of Butler v. Northumberland, supra, where the verdict stands well, upon the note, as rendered. The only question is, as to whether there should be any deduction from the full amount of that verdict on account of any partial want of consideration, in consequence of any false and fraudulent representations of the plaintiff at the time of the sale-, in any material matter affecting the value of the land conveyed.

If the defendant so elects, he may have a new trial upon that issue, and then judgment will be rendered upon both verdicts in a way to do justice between the parties, — otherwise, Judgment on the verdict.