Hunt v. Haven , 1875 N.H. LEXIS 14 ( 1875 )

FROM GRAFTON CIRCUIT COURT. Upon the trial the plaintiff claimed that at the time of the purchase of the Ladd farm there was a resulting trust in favor of James Woodward. He further claimed that James Woodward became the equitable assignee of the mortgage of November 23, 1840, from Joshua Woodward to Joseph Bell, and that the plaintiff, as his legal representative, succeeded him in that capacity. He, however, abandoned both of these positions during the trial. He thereby conceded that Joshua Woodward was the equitable as well as legal owner of the Ladd farm on February 28, 1842, when he mortgaged his farm to Joseph Bell. The description in the mortgage reads thus: "All the farm in said Haverhill, lying on both sides of Ladd street, so called, on which I now live and which I now carry on, estimated at 150 acres more or less." The plaintiff contends that by this description is included the Ward farm and outlying lands, but not the Ladd farm. The defendants contend that the mortgage includes the Ladd farm and Ward farm. The main question, therefore, in this case, is, whether the mortgage includes the Ladd farm; and hence it becomes material to inquire how and by whom it was occupied and carried on at that time. We will consider the exceptions in the order in which they are named in the reserved case.

After the plaintiff withdrew his claim that there was a resulting trust in favor of James Woodward, the jury were instructed that they might consider all the evidence thus admitted upon the question whether the Ladd farm was covered by the description in the mortgage to Bell, — that is, to show how it was in fact treated and managed by the parties. The point to be determined was, whether the Ladd farm was described in the mortgage of 1842 from Joshua Woodward to Joseph Bell. It is not necessary to inquire whether Joshua owned the property or not. If it was described in his deed to Bell, then. James Woodward, claiming under a later deed from Joshua, would have been estopped by his grantor's covenants of warranty; so that the real and only question is, whether the Ladd farm was in 1842 in the possession of Joshua; — did he then live on it and carry it on? If he did any acts of carrying on, his, declarations accompanying those acts would be evidence tending to show whether he was really carrying it on, or working for somebody else.

In Bell v. Woodward, 46 N.H. 315, 335, a familiar rule in the interpretation of deeds was laid down the following language: "Courts will call to their aid acts done under the deed as a clue to the intention of the parties. So the acts of the party may be shown through whom title is claimed. No reason is perceived why every declaration accompanying the act of possession, whether in disparagement of the claimant's title, or otherwise qualifying his possession, if made in good faith, should not be received as part of the res gestae, leaving its effect to be governed by other rules of evidence." "Under the aforesaid rules, evidence of the acts and declarations of Joshua and James Woodward, tending to show the character of their occupation, and especially when tending to show whether or not the premises were used and treated as part of the Ward farm, or Ladd farm, or otherwise, becomes competent as part of the res gestae. So it is important to know how these farms were carried on, and how used. As the occupation upon the evidence was equivocal, evidence of the claims of James and Joshua becomes competent, as tending to show the character of the acts of each, whether acts of occupancy for himself or the other. The acts and declarations of tenants of the like character are to the same extent competent. The declarations of a party in possession of lands, as to the nature of his possession, may be given evidence against all persons claiming under him."

The testimony introduced by the plaintiff, in this case, upon the claim of a resulting trust, consisted of the declarations of Joshua and James, — that the latter was in the possession or occupancy of the Ladd farm as owner, — and the statements of Joshua, to the effect that he bought the property for James. The case shows that the declarations of Joshua were admitted, "the plaintiff not admitting, but, on the contrary, denying, that Joshua was in the possession of the premises at the time." It is objected by the defendants that his declarations were not competent as being a part of the res gestae. "The res is wanting. The very question in issue is, whether Joshua, in fact, lived upon — was in possession of — the farm; and upon that question, his declarations, one way or the other, are mere naked hearsay. None of the declarations accompanied any act done upon the farm. The existence of the res itself, of which the declarations are claimed to be a part, can neither be proved nor disproved by the declarations themselves. Here the plaintiff puts in the declarations, not to prove but to disprove, the existence of the only fact which could render them competent."

To this the plaintiff replies: "The defendants say the res is wanting. Not so: the res is the fact, which the defendants proved by Lyman Buck and other witnesses, that Joshua Woodward, after February 28, 1842, and even after September 4, 1844, was living in the town upon the ward farm, and was seen at work at different times upon the Ladd place, and that the crops of both farms were put into the barn upon the Ward place. These facts — which the defendants themselves put in evidence — unexplained, would tend to show that during the time to which they relate Joshua Woodward was living upon and carrying on both farm. If, in whatever he did upon the Ladd farm, he was at work for himself as owner, his acts of cultivation and management so far constituted an occupation by himself, and he, so far, was carrying on the farm; while, on the other hand, if in whatever he did upon the Ladd farm he was not claiming for himself, but at work for James, his acts were, in a legal sense, the acts of James, and James was "carrying on" the farm not less when Joshua was at work than at other times. In this state of the case, any declarations of Joshua, whatever may be the particular language used showing the character of his acts of occupation, whether for himself or otherwise, are most clearly competent. The fact that the legal title was in Joshua Woodward does not necessarily prove that Joshua was either "living on or carrying on" the Ladd farm. He might hold the legal title to the farm without living on it: he might hold the legal title without carrying it on: he might hold the legal title without claiming any beneficial interest: it is perfectly obvious that he might hold the legal title and yet James be "carrying on" the farm, as owner — that is, as beneficial owner — and Joshua be at work for him, more or less, at different times; — and Joshua Woodward's declarations, during that period covered by the defendants' evidence, showing whether he was there as owner and for himself, or otherwise, must be competent, if the defendants' evidence was properly admitted, and they are in no position to say it was not."

The legal ownership of the farm was conceded by the plaintiff, on the trial, to be in Joshua Woodward; but the question of ownership, though not in controversy, had a direct bearing upon the question of occupation, which was the principal question tried. It was not claimed that Joshua Woodward ever lived upon the Ladd farm, so that the question whether he carried it on in 1842 was a vital question to both parties. The declarations of James Woodward, that he claimed to own the premises, have a direct tendency to show that he was occupying them on his own account, and not as agent or tenant under Joshua Woodward. Marcy v. Stone, 8 Cush. 4. And the declarations of the latter, that he had nothing to do about the Ladd farm, and that he did not own it, but that it belonged to James, had the same tendency to prove that the latter was occupying for himself and not on account of the former; and being the declarations of a deceased person, under whom the defendants derive their title to the premises in dispute respecting the boundaries of the land described in the mortgage to Bell, are admissible against the defendants' claiming under him. Pike v. Hayes, 14 N.H. 19. The same is also true of the declarations of the tenants of the Ladd farm, as to whom they claimed to hold under. The declarations of a tenant in possession are competent not only to rebut a title, set up by or under the party who made them, but are affirmative evidence of title in the party for whom the person in possession declared that he held it. So. Hampton v. Fowler, 54 N.H. 197.

The evidence, that James Woodward was assessed for the Ladd farm in 1843, was an act of ownership, to be weighed by the jury. Hodgdon v. Shannon,44 N.H. 576. It was evidence of a continuous claim by James Woodward. The plaintiff claimed that James was, and Joshua was not, in the occupation of the Ladd farm in February, 1842, and, to support this claim, he introduced James as a witness, whose testimony tended to show that he was in occupation of that farm in the years 1841, 1842, and 1843, under an agreement to pay the taxes thereon. Although the assessment of 1843 was after the date of the Bell mortgage, it had some tendency to show the character of the occupation of the farm before that date by James, and that his occupation was continuous.

No exception lies to the introduction of the Goss mortgage, or to the evidence that James Woodward paid the interest upon it for several years. In Bell v. Woodward, 34 N.H. 90, it was held that James Woodward became subrogated to the rights of the mortgagee under that mortgage as against Bell. The evidence was also competent as showing the character of his occupation, and that his claim was continuous.

The defendant claimed in his opening statement to the jury that Mr. Bell had no knowledge of the existence of the deed from Joshua Woodward to James Woodward. To rebut this, it was competent for the plaintiff to show that his brother-in-law [Thompson] resided in Haverhill, and attended to business there for him, where the record was. How much weight was to be given to this evidence was another question, and was for the jury to determine. It might be much or little, or possibly none at all, but it was a circumstance which the plaintiff had a right to have weighed.

It was also competent for the plaintiff to show that no money was obtained upon the mortgage of February, 1842, to rebut the statement made by the defendants' counsel in his opening, that from the condition and value of Joshua Woodward's property, and the incumbrances upon it, it was improbable that Mr. Bell would have taken the mortgage of February, 1842, as security for a large debt, unless it was understood that the Ladd farm was included.

The instructions to the jury, in regard to how far the record of the deed from Joshua Woodward to James Woodward was notice to Mr. Bell of the existence of that deed, were correct, and the instructions requested were properly refused. The record, if not conclusive evidence of notice to Bell, was certainly to be weighed with the other evidence in the case in determining the question whether he knew of the existence of this deed when he took the mortgage of September 4, 1844. If the jury should find that Joshua Woodward was not in the occupation of the Ladd farm in September, 1844, and that Mr. Bell, when he wrote and took the mortgage of that date, knew of the existence of the deed from Joshua to James, it is evidence of an admission that Joshua did not live upon nor carry on the Ladd farm in February, 1842, and would be strong evidence that that farm was not included in the mortgage to him of the date last mentioned. The instructions upon this point were sufficient, and, therefore, the court properly refused to instruct the jury as requested, that the description of the premises conveyed by the mortgage of September 4, 1844, was not evidence upon the question at issue, unless the jury were satisfied that Bell at the time he took the mortgage had notice of the deed — from Joshua Woodward to James Woodward — of June 9, 1843. The jury were told that the record was to be weighed with the other facts in the case, but was not conclusive evidence. If, therefore, they found that Mr. Bell had no notice of the record, or had not such notice from the facts of the case and circumstances of the parties, including their acts, as to put him upon inquiry, then the description in the last mortgage was not evidence upon the question at issue. The least that can be said of the instructions is, that they were sufficiently favorable to the defendants.

The court, also, properly refused to grant the defendants' last request for instructions, that there was no evidence competent for the jury to consider tending to show that James Woodward had any title to or ownership in the Ladd farm prior to June 9, 1843, and that there was no evidence tending to show that any one except Joshua Woodward was either the legal or equitable owner of the Ladd farm after the date of Samuel Ladd's deed to him, and prior to June 9, 1843. The refusal was very properly put, upon the ground that the instruction was not germane to the question finally sent to the jury, and was not called for by the facts appearing in the case. As before remarked, the question of title to the Ladd farm was not in dispute. The plaintiff conceded that both the legal and equitable title was in Joshua Woodward. But it was material how the parties understood the title to be, upon the question of occupation, and as showing the character of the possession by either of them; and, as no exception was taken to the instructions given as to the bearing of the evidence, which had been introduced to show a resulting trust in James Woodward, upon the question of what was intended to be conveyed by the mortgage of February 28, 1842, there is no occasion to examine further that question.

The defendants also excepted to the admission in evidence of the declarations of Joshua and James Woodward, as to the ownership of the Ladd farm subsequent to February 28, 1842. If the jury found that Mr. Bell, at the time he took the mortgage of September 4, 1844, had notice of the deed, from Joshua to James Woodward, of June 9, 1843, any evidence as to the possession of the Ladd farm prior to the execution of the second mortgage would be material, because in the last mortgage the premises are declared to be the same as those described in the first. The case also finds that the defendants introduced the deposition of Lyman Buck, who testified as to the manner in which the Ladd farm was carried on after February 28, 1842. As before remarked, the character of the occupation after February 28, 1842 had some tendency to show its character and legal effect on that day, and the defendants having introduced evidence in relation to the occupancy subsequent to that date, it was competent for the plaintiff to rebut it by introducing other evidence to the same point. Counsel for the plaintiff well says, — "The facts were continuous in their nature; and evidence of the character of the occupation, after February 28, 1842, would tend to explain the occupation before that time, just as, upon a question of a fraudulent sale, the inquiry is not restricted to transactions prior to the principal fact."

The lease from Dow to Joshua Woodward had some tendency to confirm the position of the plaintiff, that Joshua was not carrying on the Ladd farm February 28, 1842, and was, therefore, properly admitted; but, if it had no such tendency, the most that can be said of it is, that the evidence was immaterial, and was not calculated to prejudice the jury against the defendants.

The testimony of Eliza Poole was competent — at least, for the purpose of contradicting Arnold Ladd. Ladd had testified that the farm was bought for Joshua. Mrs. Poole's testimony contradicts Ladd, and tends to show that it was bought for James.

Certain interrogatories were objected to as being leading. Whether they should be put, notwithstanding, was a question addressed to the discretion of the judge who presided at the trial, and that question was not sent up by him, and is not now open to consideration.

The examination-in-chief of J. B. F. Woodward did not go beyond 1842. Upon cross-examination, he was examined as to the occupation and history of the two farms subsequent to that date. Cross-interrogatory 92, which was objected to, refers to Int. 19 in chief. Int. 96 shows that the witness received his information from Joshua Woodward, and that makes his answer to Int. 92 competent.

The letter of Mrs. Woodward to Mrs. Goss was properly excluded, being irrelevant. It is res inter alios. James Woodward does not appear to have had anything to do with it, and it in no way contradicts him. Mrs. Goss's answer to the 11th interrogatory in her deposition was also properly excluded. It appears that she learned the fact inquired about more than 25 years subsequent to the time when it is claimed to have transpired. That she did not learn of it sooner has no tendency to prove that the fact was otherwise. Whether she would have been likely to have heard it contemporaneously with the event depends on so many contingencies, that the fact that she did not furnishes no ground from which the jury could find that the information was untrue. Further, the testimony in no way contradicted Mrs. Woodward.

CUSHING, C. J. and STANLEY, J., C. C., concurred.

Exceptions overruled, and judgment on the verdict.