Treadwell v. Bulkley

Reeve, J. (After stating the case.) It does not appear from the motion on what ground the objection to Hinsdale's testimony was made. It is apparent that it was not because he was an incompetent witness; for his testimony had previously been read without objection. It must have been that the testimony itself was irrelevant. The question before the court was, whether the witness assented to the conveyance aforesaid; and when he had before testified that he meant to avail himself of the deed, provided that he could not find other property which suited him better, it seemed to imply, that if he did find such other property, he had no intention to avail himself of the deed. It must, therefore, be proper evidence to be left to the jury, for them to infer whether there was or was not an assent by the witness to the conveyance. [401] The defendants orf the trial moved the court to strike out the name of Ger shorn Bulkley from the declaration, that he might be used.as a witness; on the ground that it appeared by the testimony of Hinsdale that he had assented to the deed aforesaid; and also on the ground that if he dissented, the whole property was by the said deed vested in said Amos., Zebulon, Oliver, Lucy, and Anna; but the court refused to strike out the name of said Gershom. It certainly was not the province of the court U? determine the fact from the testimony given in by the witness, that he had or had not assented to a deed. It was in this case a mere matter of fact, which the jury only were competent to decide. However true it may be, that when a deed is made to an infant, or lunatic, incapable of an actual assent,' or to any person who does not know that a deed has been executed to him, the law presumes an assent; yet this in the last case is the presumption of a fact liable to be removed out of the way like all other presumptions ; and when there has been proof introduced for the purpose of showing that there was no assent, which in itself implies a dissent, the jury Only are the competent forum to decide this question. The other ground for striking out the name of Ger-shom Bulkley from the declaration, if it had been well founded, would have decided the case in favour of the defendants; for if Bulkley had no estate in said land, the plaintiff could not have acquired any. But it is an idea wholly inadmissible, that when a deed ⅛ executed to two or more, and one dissents to the conveyance, the others are vested with the whole property. When a deed -is executed to more persons than one, without designating in what proportions they shall hold, they must take in equal proportions. If to two persons, they each take one half; if to three, they each take one third; and the dissent of one cannot increase the proportions of the others. No more than one third was intended to be conveyed ; and by such a construction of the deed, the intention of [402] the grantor would be defeated- Such a construction wou^ often work great injustice, or produce much perplexity. A. is indebted to B., C. and D., to each a hundred dollars, and conveys to them a lot of land of that value to satisfy their debts. D. refuses to accept the deed. Shall B, and C. have an exclusive title to the whole lot, by which means they would each have fifty dollars more than their debt ? The legal operation of such deed is, to give to each one third, and no more; as much so as if it had been detailed at length in the deed. And at the time of executing the deed but one third vested in each grantee; and the moment that D. dissented to the conveyance, it devested him of all title, but could not operate to convey his share to the other grantees, but left it where it was before it was granted to him, viz. in the grantor. If, therefore, there was a dis .ent to the deed by Hinsdale, there was a residuum of one sixth in Bulkley, on which the plaintiffs might levy their execution ; and as only five elevenths of this sixth part were taken to satisfy this execution, there were still six elevenths of one sixth part remaining in Bulkley ; so that he was properly made a defendant, and could not be struck out of the declaration. The defendants offered evidence to show that the aforesaid deed was given in satisfaction of debts separately due to the grantees named therein, in order to show the amount of said debts respectively, to ascertain-the proportions in which said grantees held, and to show that Hinsdale’s proportion was not one sixth; but this testimo-ny, so offered, was rejected by the court. The rule of law undoubtedly is, as has been already observed, that when a conveyance is made to more than one person, they take in equal proportions, unless different proportions are designated upon the face of the deed. The legal operation of this deed was, then, to convey one sixth of the land to Hinsdale, and no parol proof could be admitted to give it a different operation than what [403] the words contained in the deed imported. Whatever equity there might be among the grantees as to their holding different proportions, according to their respective debts, this is a matter for them to settle among themselves ; and if they cannot agree, the only remedy of those who claimed to be injured, is to apply to chancery that justice may be done. But a court of law has no such power, and they cannot control the legal operation of the deed. Since, then, in point of law, one sixth part was intended to be conveyed to Hinsdale, and also, if Hinsdale did not assent to the deed, this sixth part still belonged to Gershom Bulkley; and the question of assent being a matter of fact; the charge to the jury that it belonged to them to determine whether Hinsdale assented to the said deed, and if he did not assent to the same, there remained in said Gershom Bulkley one sixth part of the premises, whereon the plaintiffs had right to levy for their debt, was correct. For these reasons, I do not advise to a new trial. In this opinion the other judges severally concurred. New trial not to be granted.