Ford v. Burleigh

Smith, J. The question is not whether the plaintiff might have maintained trespass qu. el., but whether he can maintain trespass in this county for taking possession of and injuring his building situated in Belknap county. The declaration is for trespass to a chattel, and alleges that the defendant “with force and arms broke and entered the Concord tent, being the personal estate of the plaintiff, situate in Alton in our county of Belknap, on the camp-meeting ground, so called, and then and there,' with force and arms, broke and entered the rooms, apartments . . . in said Concord tent,” &c. Whether the ancient reason for the distinction between transitory and local actions has not to some *391 extent ceased it is unnecessary to inquire, for it cannot be denied that the law has settled the distinction, and that the action trespass qu. cl. is local. Doulson v. Matthews, 4 T. R. 503. But in this case the building, having been erected by one person upon land of another under a parol license, is personal property (Dame v. Dame, 38 N. H. 429, and authorities cited); and the action being for injury to a chattel, is transitory and not local. Burleigh v. Ford, 59 N. H. 536; Laird v. Railroad, 62 N. H. 254. The award was as follows: “Mrs. Burleigh shall make out and execute a bill of sale of all her right, title, and interest in and to the Concord tent, — to wit, fifteen shares of the stock, — and that said T. Ií. Ford shall pay her therefor the sum of $2 per share, and that, in addition thereto, said Ford shall pay said Mrs. Burleigh the sum of $1.90; and the board of referees further find that said Ford holds and controls all of the remaining shares making up the balance of the old«stock; and the board of referees further find that said Mrs. Burleigh shall immediately quit the Concord tent in a quiet manner, and that all parties shall not further trouble the matter by discussion.” Tn a former suit between these parties it was held that the award did not exceed the submission. Ford v. Burleigh, 60 N. H. 278. The award is equivalent to a finding that the plaintiff owned thirty-five shares and the defendant fifteen. It is conceded that the defendant claimed at the hearing to own ten shares and control five. It is apparent the arbitrators considered that the defendant’s interest in the shares controlled by her was equivalent to that of ownership, for by the award the plaintiff is required to pay the same price for the shares which she controlled as for those which she owned. To hold that her interest in the five shares was of less value to her than her interest in an equal number of the ten would defeat the plain intent of. the arbitrators, — that the tent should become the exclusive property of the plaintiff upon payment of the sum of $31.90. This intent further appears from the subsequent portion of the award, that the defendant should execute a bill of sale to the plaintiff of all her interest in the tent, and quit it, and that the controversy about it should cease. The award, then, is as if the arbitrators had found that the plaintiff owned thirty-five shares and the defendant fifteen. Indeed, there is nothing said in the award about her controlling any shares. It requires her-to “execute a bill of sale of all her right, title, and interest in and to the Concord tent, — to wit, fifteen shares of the stock.” The award being a judgment, and conclusive between the parties, the defendant is precluded from contradicting the award, and estopped to deny that she was the owner of fifteen shares. Truesdale v. Straw, 58 N. H. 207, 218, 219; Shelling v. Farmer, 1 Str. 646 (A. D. 1726). The parties are equally bound by it. The plaintiff was bound to pay, and could have been compelled to pay, the sum of $2 per share for the defendant’s fifteen shares, whether owned or con *392 trolled by her, without further inquiry into the question of ownership or title. The parties had litigated that question before a tribunal of their own choosing, and it was no longer an open question between them. On the other hand, upon the tender by the plaintiff of the sum of 131.90 to the defendant, the arbitration and award vested the title to the defendant’s interest and property in the tent in the plaintiff. The requirement that she should execute a bill of sale was unnecessary. The tent being personal property, no deed or memorandum in writing was necessary to pass the title (Ford v. Burleigh, 60 N. H. 278); and if it had been real estate, she would be estopped to dispute the title established by the award. Girdler v. Carter, 47 N. H. 305, 308, and authorities cited. Since the award was published it appears that the defendant has purchased three of the original shares. The doubt which at first existed, whether these three shares*were a part of the thirty-five shares found by the award to be owned and controlled by the plaintiff, is removed by the amended case, which shows that at the time of the hearing and award th£ defendant in fact owned but eight shares, and controlled none; that there were seven shares which neither the plaintiff nor the defendant owned or controlled; and that the three shares purchased by the defendant after the hearing were three of the seven shares owned by others. The only fact important to know is, whether the three shares were part of the plaintiff’s thirty-five, and it is immaterial whether the defendant did or did not own or control them at the time of the hearing, for it appears from the case reserved at the October term, 1881, and made a part of this case by reference (reported in 61 N. H. 360), that at the hearing she claimed to own and control fifteen shares. She is therefore doubly estopped to deny that she did not own and control so many shares, first, because she so claimed at the hearing, and, second, by the award, which she cannot contradict until it is impeached. Her representations gave the arbitrators jurisdiction, as to her, of the fifteen shares. The plaintiff, relying upon these representations and upon the award, complied with it on his part. A grantor of land with covenants of seizin is estopped to set up an after acquired title to the same land as against his grantee. Upon the same principle the defendant is eatopped to claim, as against the plaintiff, title by subsequent purchase of shares which she claimed to own at the hearing, and which, by the award and tender, as against the defendant, became the property of the plaintiff. The plaintiff is entitled to judgment on the verdict in the first suit, and to the injunction prayed for in the second suit. Exceptions sustained. Allen and Clark, JJ., did not sit: the others concurred.