Walker v. Walker

The effect of the conveyance under which the defendant claimed title was to vest an estate for life in the plaintiff with remainder in fee to the defendant, subject, however, to be revested in the plaintiff on the non-performance by the defendant of the condition annexed to his estate by the terms of the conveyance. Rollins v. Riley, 44 N.H. 9. Knowing that his title was conditional and his estate defeasible, the defendant is not to be regarded as holding "under a supposed legal title" within the meaning of the statute relating to betterments (G. L., c. 222, s. 6), and must be deemed to have made the improvements for which compensation was sought at the trial for his own convenience and benefit, and at his own risk. Tripe v. Marcy, 39 N.H. 439, 450 451; Hughes v. Edmunds, 9 Wheat. 489. The title contemplated by the statute is one which the occupant believes, and has reason to believe, good, — that is, of whose defects he has no knowledge, and no reasonable notice or warning; and when, as in this case, the claim for improvements is made by an occupant having full knowledge of the conditions attached to his estate, which are to be performed by himself, and of which there has been a breach by his own voluntary act, it "is too unreasonable to admit of serious argument in its support."

The agreement of the parties, "that each might give in evidence the acts and sayings of the other, tending to show an uncomfortable, bad temper generally, as bearing upon the probability as to which of the two was most in fault in the matter on trial," estopped the defendant from objecting to the evidence excepted to, and makes it unnecessary to inquire whether it would otherwise have been admissible.

The instructions to the jury requested by the defendant were given in substance, and, indeed, almost literally. It is no ground for exception that they were not given in the identical language of the request. Clark v. Wood, 34 N.H. 447; Welch v. Adams, 63 N.H. 352. The additional instructions upon the same points appearing in the case were not excepted to, and must be presumed to have been satisfactory to the defendant. Welch v. Adams, supra.

Judgment on the verdict.

BINGHAM, J., did not sit: the others concurred.