Day v. Wilder

The opinion of the court was delivered by Peck, J. The dispute is between two adjoining proprietors as to the dividing line between them, involving the title to a strip of land about eight rods and twenty-two links long east and west, and one rod wide at the east end, and three rods wide at the west end, lying along the north end of the defendant’s house lot, and claimed by the defendant as part of it, and as embraced in the deeds in his chain of title down from Nathan P. Fletcher, under whom both parties claim title to this strip ; the defendant having filed a disclaimer as to the residue of the land described in the declaration. The deed of Nathan P. Fletcher, dated July 11, 1835, conveyed the entire tract, embracing both the plaintiff’s and the defendant’s land, to Asa Fletcher and R. F. Fletcher; and Asa and R. F. Fletcher, December 30, 1835, carved out of said tract of land, the defendant’s house lot, by a deed to Holmes Hammond, a copy of which is referred to for description. The defendant’s title is by a chain of deeds from Holmes Hammond down to himself, by substantially the same description as in the deed to Hammond from Asa and R. F. Fletcher. After the date of the deed to Hammond, Asa Fletcher, having become the owner of R. F, Fletcher’s interest in the said land not conveyed by the deed to Hammond, deeds, M'arcli 30, 1848, to his three grandchildren, Harriet L. Lord, Edgar N. Lord, and Emily Lord, excepting and reserving to his oldest daughter, Lorinda A. Lord, the use and occupancy, rents and profits, and entire possession of said premises, during her natural life. This deed is referred to in the exceptions, but it has not been furnished to the court. It seems, however, to be conceded, that the description in this deed does not include the strip in dispute if it is included in the previous deed to Hammond ; and that if the deed to Hammond does not include it, then it is embraced' in this deed to said grand-children. But whether the disputed land is embraced in this last591 named deed or not, as the plaintiff claims under the grantees in this deed, the defendant has the elder title from the common source, and has the paper title to the disputed land, if it is embraced in the deed from Asa and R. F. Fletcher to Hammond. No question is made but that this deed embraces the disputed land, if the length of the lines — the eleven rods — on the east and west sides of the land conveyed, called for in the deed, is to govern. There is no error in the charge of the court, in which the court tell the jury, that unless there was some object or mark in the course of said eleven-rod lines named in this deed, intended by the parties to the deed to mark the northern limit of these lines, the call of the deed would require those lines to be eleven rods long from the middle of the highway, as named in the deed; explaining the law in a satisfactory manner as to courses and distances being controlled by monuments. This charge is in accordance with the law on this subject, and was also warranted by the evidence in the case. There was no conclusive proof, if any, of monuments to control the distance named in the description. The case shows no foundation laid- by the evidence for a charge according to the defendant’s second request, to the effect that as there was no evidence that any corners ever existed at the northerly corners of the defendant’s house lot as he claimed it, other than the adjoining corners of the house lots next easterly and westerly of the defendant’s, then by legal intendment these would be the corners of the defendant’s house lot as described in his deed. There is nothing in the case to show that in any surveys, or in any of the conveyances, the northerly corners of the defendant’s lot and the northerly corners of the adjoining lots ever had, or were ever intended by any of the proprietors to have, any connection with, or reference to, each other, or that they were ever so regarded. Nor does it appear from what source the title to the adjoining lots was derived, nor under what description ; but if derived from the same source as these parties derived their title, as counsel seem to consider in argument, it does not appear whether granted by Fletcher before or after the deed of defendant’s lot to Hammond. It would have been manifest error for the court to have complied with this request, making the corners of [592] the adjoining lots the corners of the defendant’s lot by legal intendment. Objection is made to the charge of the court in which the jury were told that if the fence was made as a mere accommodation fence, and not designed or understood by the parties as being on and marking the true line between them, and it so continued down to the time the plaintiff acquired his title, then it would not constitute a mark or monument showing the true line described in the ' deed under which the defendant has derived his title. The only objection urged by counsel to this part of charge is, (hat there was no evidence tending to show that such was the character or purpose of the fence as is alluded to in the charge. But a reference to the deposition of Wm. K. Manning, who owned the defendant’s lot in question under his deed from Holmes Hammond, and who occupied it while Royal T. Lord with his wife Lorinda A., occupied the land now owned by the plaintiff, shows that there • was evidence to be submitted to the jury in connection with the other evidence in the case, sufficient to obviate this objection to the charge. Therefore the jury, under a proper charge based upon sufficient evidence, have found that the disputed land was included in the deed from Fletchers to Hammond, and that the record title is in the defendant. The plaintiff also claimed to have acquired title to the land in dispute by adverse possession of himself and those under whom he claimed, subsequent to the date of the deed to Hammond in the defendant’s chain of title. None of the deeds in the plaintiff’s chain of title from the common source, Asa and R. F. Fletcher, embraced the land in dispute except the deed of Harriet E., Edgar N., and Emily Lord to the plaintiff, dated May 2, 1861, which does embrace it; so that none of the occupants of the plaintiff’s land whose possession can avail the plaintiff in giving him a possessory title, occupied the disputed land under color of title, prior to this deed to the plaintiff, as the jury have found that it was embraced in the deed to Hammond. But still, actual occupancy of the disputed strip, under a claim of title, by such prior occupants, would avail the plaintiff in making out a posses'sory title in himself. The plaintiff had the full benefit of this in the [593] charge of the court, which on this branch of the case, was according to the request of the plaintiff’s counsel. It is insisted that the declaration of Royal T. Lord while in possession in the right of his wife under the aforesaid reservation, made while William K. Manning owned and occupied the defendant’s house lot, that if Wm. K. Manning had a mind to terrace the land — referring to the land now in dispute — he would have a good place to raise tomatoes, was improperly admitted in evidence. It is claimed that it is too equivocal and uncertain in its meaning, to justify its introduction as evidence. But we think it has some tendency to show a recognition on the part of Lord of the right of Manning thus to appropriate the land to his own use, and consequently to the same extent to show that his, Lord’s, possession of it was not under a claim of right. It is claimed also that as Royal T. Lord’s possession was in right of his wife, his declaration while thus in possession, living with his wife, was not evidence to affect that possession to the prejudice of the plaintiff. It is not very material what title or right, if any, Lord’s wife acquired under that reservation, as no question is made but that Lord’s possession was in right of his wife, and in the chain of the plaintiff’s title. It is true that Lord being in possession in right of his wife, if he claimed her boundary to be at a line outside of the true line, and actually occupied accordingly to the line thus claimed, such possession would be subservient to her title, and would inure to her benefit in the acquisition of a possessory title to the extent of such possession. But this does not show that the statement of Lord was inadmissible for the purpose it was admitted and used. The possession was also his possession in a qualified sense, and would inure to his benefit to the extent of his right to occupy his wife’s land. The plaintiff claimed on trial that the possession of R. T. Lord under the said right of his wife, inured to the plaintiff’s benefit toward making title in the plaintiff by fifteen years’ possession. This possession being relied on by plaintiff to make a possessory title in himself, he must take it with its infirmities if any it has. If it was not under a claim of right so as to be adverse, it is not available to the plaintiff. The state [594] ments of Lord made during the period of such possession, tending to show his possession of the land in dispute was not adverse, or under a claim of right or title, are competent evidence to show the character of the possession in this respect. The declaration in question having been made by R. T. Lord while he was in possession, indicating his intention respecting such possession, is evidence against a party claiming a possessory title by means of that possession, so far as it tends to give character to that possession. Possession being in its nature continuous, such declaration is regarded as a declaration accompanying the act, and giving character to it as. part of the res gestee. This is not admitting the husband to make declarations to defeat the title of the wife then already existing, but only to qualify and give character to a cotemporaneous act of the husband on which the wife relies to acquire title. This was the purpose for which the declaration in question was admitted, and the extent to which it was used; and in this there was no error, although the plaintiff claims under his deed from Harriet E., Edgar N.,'and Emily Lord, as well as under his deed from the wife of Royal T. Lord. Judgment affirmed.