Boothby v. Hathaway

The opinion of the Court was by

Whitman C. J.

This was an action of covenant broken, on a deed of warranty of the title to land. The covenants, the breaches of which are assigned, are that the plaintiff was seized in fee, and had good right to sell and convey the premises described, and that he would warrant and defend the same against the lawful claims and demands of all persons. The lands conveyed were situated in New Hampshire: and the title to them must be considered with reference to the laws of that State. Such laws, when necessary to the maintenance of an action in this State, must be proved to be in force there; and the burthen of such proof is upon the party, who must depend upon it, to sustain his side of a cause. It may, perhaps, be presumed, or be taken for granted, that the laws of that State, aside from statutory regulations, do not, in general, vary essentially from those of Maine and Massachusetts: all thee of those states having formerly been* under the same jurisdiction ; and deriving their common law principles from the same great source : and it is a matter of notoriety, that the statutory regulations of those states, often times, bear a very great similitude to each other: and the cases decided, as contained in the books of reports, are interchangeably, resorted to for an exposition of legal principles. The very case decided in New Hampshire, and by the counsel for the plaintiff in his argument, cited and relied upon with much emphasis, as maintaining his positions, would seem to have been considered as finding its support in the authorities cited from the Massachusetts reports, in the arguments of the counsel in that case. No others were referred to, either by them or the Court. And we are not aware that the law in this State would be adjudged otherwise, than as decided in that case.

The plaintiff having brought his action, averring breaches of covenant on the part of the defendant, the burthen of proof is upon him to sustain his allegations. Although in the writ there is an averment of the breach of the covenant for quiet enjoyment, it would scarcely seem to be pretended that the proof supports the allegation. In fact there does not seem to have been any evidence of an actual eviction; without which the action, upon that ground, could not be maintained.

The reliance, it may be presumed, is placed upon the other supposed breaches : as to which, it would seem to be undeniable, that the plaintiff, upon receiving his deed from the defendant, in 1827, immediately under and by virtue of it, took actual possession of the lots of land conveyed, and has continued that possession ever since; furthermore that the defendant, for seven or eight years before his conveyance to the plaintiff, had exercised exclusive and uninterrupted control of the same lots. This fact, we think, would have authorized the introduction of the deeds from Foss and Osgood to the defendant, by way of showing the nature and design of his acts of ownership. Under the authority of the cases of Marston v. Hobbs, 2 Mass. R. 433, and Bearce v. Jackson, 4 Mass. R. 408, the principles recognized as sound law, in which we see no reason to doubt, would be held to be in force in New Hampshire, we think, would authorize us to consider that an entry under a deed, although from one having no right or title in himself -to convey, might tend to show a' seizin, created by a disseizin, whereby the former or rightful owner might be ousted. Considering the lapse of time, before and after the conveyance to the plaintiff, during which every act of ownership and possession of the lots in question, has been done exclusively, so far as appears, by the defendant and the plaintiff, we deem it quite -evident, that the defendant must be considered as having had, at the time of his conveyance to the plaintiff, good right to convey; and that he had, at the same time, what in law may be denominated a seizin in fee; and, therefore, that the covenants, in reference thereto, have not been broken.

A further presumption, if any were needed, in favor of the seizin and right to convey, on the part of the defendant, arises from the neglect of those in whom the plaintiff supposes the title to have been, from 17S2 till very lately, to assert any title to the premises. The nominal consideration, merely, for which the supposed proprietors parted with whatever title they might seem to have had, would indicate no very serious intention- of their having ever intended to make, for themselves, any claim to the premises. Their titles; if any they had, were, in a good measure, dormant. And the case is not without evidence, although of a circumstantial nature, tending to raise a strong presumption, that the raking up of this supposed adverse title, was by the procurement, or at least by the connivance, of the plaintiff, but .for which it might never have appeared. It may well be remarked that no grant is produced to Atkinson and others — no law exhibited authorizing any proceedings as a proprietary body by them — no specification of the object of calling any meeting — no evidence of any notification of one —. no evidence that the records of the proprietors are lost, and therefore cannot be produced — no evidence of the acceptance and ratification of the division-, by taking and continuing possession under and according to it. In the absence of all these particulars, no presumptions can or ought to be made, in favor of the supposed title under the division. A nonsuit, therefore, as agreed by the parties, must be entered.