Thompson v. Gerrish

FROM COOS CIRCUIT COURT. If one tenant in common oust his co-tenant, the latter may maintain trespass. Odiorne v. Lyford, 9 N.H. 502, p. 511. If one tenant in common enter into possession of the tract in question, claiming either in his own right, or under another, the entire title, it will in law be an ouster of the other tenant, and a trespass, for which trespass qu. cl. may be maintained. Wood v. Griffin, 46 N.H. 230, p. 237. Here the defendant justified under a license from Simon Cole, in whom he claims was the title to the whole lot; and Hill, the plaintiff's co-tenant, undertook to convey the whole title. These acts clearly constituted an ouster, so as to entitle the plaintiff to maintain trespass. The motion for a nonsuit was therefore properly denied.

The fourth objection taken by the plaintiff at the trial is well founded. The premises were taxed to the estate of R. Ingalls by the number of lot and range. The premises had been taxed to him for several years before his death, and to his estate for several years after his death; but it appears from the case that Ingalls did not own the premises after December 1, 1859, and how long prior to that date he parted with his title, if he ever had any, does not appear. Nor is it found that he was the original owner of the lot. The actual owners, at the time of the assessment in 1867, were Hill and Ewell. The case finds that Bean, one of the selectmen, knew that they claimed to won the premises at the time. His knowledge must undoubtedly be regarded as sufficient. The statute then in force (Rev. Stats., ch. 40, sec. 10) required that in the assessment of taxes "the unimproved lands of non-residents shall be taxed in the name of the owner, if known, otherwise in the name of the original proprietor, if known, otherwise without any name, and by the number of the lot and range, if lotted, and the quantity thereof, or by such other description as it may be readily known by." Ordinarily, all the selectmen can know in regard to the ownership of land is what they may learn from the claims made as to ownership, and from the occupation of the land. It has not generally been supposed to be their duty to require the claimant to exhibit his title deeds to them, or for them to examine the registry for the purpose of obtaining such knowledge. Such a practice would be expensive, tedious, and attended with delay, and would not always afford the desired information. If the selectmen know who claims to own the lot, know who is the reputed owner, especially if he is in the occupation of the premises, as would generally he the case, that must be sufficient. They are not required to have such knowledge as is to be derived from evidence such as would be received in a court of justice.

For the omission, then, of the selectmen of Berlin to tax these premises to the owners, when they knew who they were, the assessment must be held bad. Cardigan v. Page, 6 N.H. 192; Ainsworth v. Dean, 21 N.H. 400; Smith v. Messer, 17 N.H. 420.

It becomes unnecessary to examine the other objections raised at the trial. The plaintiff is entitled to judgment for $142.50, with interest from April 5, 1871.

CUSHING, C. J., and RAND, J., C. C., concurred.

Judgment accordingly.