Little v. Downing

Fowler, J. The action was rightfully permitted to pro- . ceed in the name of the wife, Sarah Little, after the death of her husband. This would manifestly have been so at common law, the suit having been brought for an injury to land of the wife, and she being therefore the party in interest. But, under the express provisions of our statutes, there can be no possible question on this point. Knox v. Knox, 12 N. H. 360; Revised Statutes, chap. 186, secs. 14, 15; Laws of 1844, chap. 139 ; Comp. Laws 481. The ancient book of records, purporting to be the proprietary records of Rumney, accompanied as it was by an admission that it came from the custody of the town-clerk of Rumney, the proper depositary, by statute, of the public records of that character belonging to the town, was properly admitted in evidence, without proof that it contained the records of the original proprietors of the town. Official records, or books kept by persons in public office, in which they are required to write down the proceedings [365] of some . public body or corpoi’ation, are generally admissible in evidence, although their authenticity be not confirmed by an oath, or the power of cross-examining the persons on whose authority their truth and correctness depend. Where the books themselves are produced, and it is proved or admitted that they come from the proper depositary, they are received as evidence without further attestation. This is peculiarly the case with ancient records, as to which the jury may well presume many things which it would be indispensable to prove in relation to more recent documentary evidence. 1 Greenl. Ev., secs. 488, 484, 485, 498, 507; Comp. Laws 363, see. 17; Woods v. Banks, 14 N. H. 109; Adams v. Stanyan, 24 N. H. (4 Foster) 405 ; Ferguson v. Clifford, ante, 86. There was no valid objection to the testimony of William A. Burns, to show what were the words of the ancient record, before the writing had become obscure by the fading of the ink. The record, being illegible, was lost for all practical purposes, and the next best evidence — the testimony of a witness who examined and copied it while legible — was properly received to supply the deficiency. The record of the warrant for the proprietary meeting, June 14, 1782, and of the proceedings at that meeting and its adjournment, was competent. - After such lapse of time the jury might presume that due notice was given and the meeting regularly holden. The contents of books of l’eeord, when the books themselves are produced from the proper depositary, tímst be evidence of the facts therein recited, which'were proper subjects of record. So, too, the copy of the proprietary charter, duly recorded and certified in the ancient book of records of the proprietary, was properly admitted. Woods v. Banks, 14 N. H. 101; Forsaith v. Clark, 21 N. H. (1 Foster) 409 ; Adams v. Stanyan, 24 N. H. (4 Foster) 405, and authorities cited on page 416. See, also, Sumner v. Sebec, 3 Greenl. 223, where it was holden that a book, found in the hands of the town366 clerk, purporting to be a record of births and marriages, was 'prima fade evidence of the facts contained in it, although it had no title, certificate, or other attestation oí its character. "We have been unable to discover any sufficient objection to the reception of the evidence, that the premises in controversy had, for a long series of years, been taxed to Josiah Little and his heirs, and that they had paid the taxes, as tending to show that said Little approved and assented to the pitch or selection of this lot for him, as made and recorded on the records of the proprietary, and claimed to own it by virtue of that pitch or selection; and none has been suggested by the defendant’s counsel. It is quite incredible that Little and his heirs should consent, for so long a period, to be taxed and to pay taxes for a tract of land in whieh he never claimed any interest or estate. There can be no doubt that the entry upon the premises. in controversy, by Atkinson, and the survey by Burns, for the purpose of ascertaining their location, quality and boundaries, were sufficient evidence' of possession by the plaintiffs, and the testimony was properly received. Cobleigh v. Young, 15 N. H. 498. It was unnecessary for the plaintiffs to prove the existence of a deed or grant from Emmons to Josiah Little, in order to show the title of the premises in controversy to have been in the latter. The pitch for Little by Edward Everett, on Emmons’ right, having been made and recorded upon their own records, in strict accordance with the vote of the proprietary, was equivalent to a grant or deed from the proprietary, and vested in Little title to and seizin of the lot pitched, as against the- proprietary and all persons claiming under them. The records show a recognition by the proprietary of Little’s right to this tract of land in severalty, which estops them and their privies from denying his ownership of it. Coburn v. Ellingwood, [367] 4 N. H. 99,108; Williams v. Inglis, 21 Pick. 288; S. C., 2 Metcalf 83 ; Davis v. Mason, 4 Pick. 158 ; Cobleigh v. Young, 15 N. H. 493; Atkinson v. Bemis, 11 N. H. 44; Enfield v. Permit, 8 N. H. 512; Enfield v. Day, 11 N. H. 520. The entry and partial occupation by Willey, for tbe purpose of sapping, in the spring of 1828, were clearly no actual disseizen of Josiah Little. They seem to have been only a temporary trespass, so that, as Willey is not shown to have had even color of title, it is very doubtful whether his quitclaim deed gave any color of title to the defendant. Towle v. Ayer, 8 N. H. 57, and authorities; Woods v. Banks, 14 N. H. 101. Willey was a mere stranger, and entered for a temporary purpose, hardly to be regarded as in any way inconsistent with the rights of the real owner. If he can be considered ever to have had any legal possession of any portion of the lot, it cannot be pretended that it was such as to oust Josiah Little of his seizin of the entire lot, under his grant from the proprietary. As a general rule, if one enters upon land under color of title, he is presumed to enter claiming according to the extent of his title, and to have constructive possession of all which his title covers, lying in the same tract; but evidence of adverse possession is always to be construed strictly; and, in order to make such possession effectual to restrain a title, it must be shown to have been open, visible, exclusive and notorious ; calculated to give notice to the owner, of an adverse claim, by the possessor, to the land in his possession. Hoag v. Wallace, 28 N. H. (8 Poster) 547; Gage v. Gage, 30 N. H. (10 Foster) 520; Tappan v. Tappan, 31 N. H. (11 Poster) 41; Campbell v. Campbell, 13 N. H. 485; Smith v. Hosmer, 7 N. H. 436; Hale v. Glidden, 10 N. H. 397 ; Woods v. Banks, 14 N. H. 101. If, then, the deed of Willey gave the defendant color of title to the land in controversy, the instructions as to the necessary characteristics of the possession under it, in [368] order to render it effectual to give the defendant title, were entirely correct. The effect of coverture and insanity upon the operation of the statute of limitations was fully discussed and considered in the recent case of Pierce v. Dustin, 24 N. H. (4 Foster) 417. It was there held that the statute did not run so long as either disability continued, and that it made no difference that the suit in which it was pleaded had been brought by the husband and wife. The instructions in the present case are fully warranted by the decisions and remarks of the court in that. The motion for a nonsuit was properly denied. Although the plaintiffs failed to prove an entry within the period specified in their writ, they were at liberty to waive the time alleged in the declaration, prove any single trespass at any time before action brought, and recover damages therefor. Coke Littleton 283, b; Buffer’s Nisi Prius 86 ; Webb v. Turner, 2 Strange 1095; Hume v. Oldacre, 1 Starkie 351; 2 Saund. Pl. & Ev. 855; Fontleroy v. Aylmer, 1 Ld. Raymond 239; 2 Greenl. Ev. 512, sec. 624 ; Brown v. Manter, 22 N. H. (2 Foster) 468; Chandler v. Walker, 21 N. H. (1 Foster) 282. As there has been no specification or suggestion by the counsel for the defendant, pointing out error in any of the numerous rulings, or in the various instructions of the court below, to which exception was taken on the trial, it can hardly be necessary to examine and consider those rulings and instructions more at length in detail. They seem to us to have all been in substantial conformity with repeated decisions of tbe highest judicial tribunals of this and other jurisdictions. There must, therefore, be Judgment for the plaintiffs upon the verdict.