Newell v. Horn

Nesmith, J. This was case for a false and fraudulent representation made by defendant, in regard to the boundaries of lot No. 66, in Dummer, and other adjoining lands. At the trial before the jury, the court excluded the testimony of Ransom Twitchell, who testified to the declaration of James H. Horn, the father and grantor of the defendant, in relation to the east line of lot No. 66. The defendant excepted to the ruling of the court. The evidence offered did not come within the recognized exception to the general rule, under which hearsay evidence of the declarations of deceased occupants of real estate is held to be admissible on the trial of an issue of title. The inquiry made of the witness was not for the purpose of showing that the tenant’s ancestor, when on the land, made a declaration accompanied by an act, such as pointing out a monument, or existing boundary. Nor did the question tend to elicit statements from the witness, in disparagement of his apparent title, as indicated by his possession. On the contrary, the declaration of the deceased occupant, sought to be proved, appeared to be in support of his own title, and in his own favor, and in derogation of the title of him under whom the demandant claims. The evidence in this point of view was evidently incompetent. Smith v. Powers, 15 N. H. 546; Morrill & als. v. Titcomb & als., 8 Allen 100. The court, also against defendant’s exception, allowed George Pierce, who had been agent for a number of years, of lands for A. ~W. Haven, Esq., to testify, that, as his agent, he had entered upon lot No. 67 in Dummer, and claimed said lot for him. It is very difficult to perceive [382] the pertinency of this evidence. There is nothing in the case to show that either party actually claimed any ownership in this lot. Nor is there anything stated here to render the possession of this lot of importance to either side. The testimony of Pierce probably went far enough to establish a possessory title in Haven to lot 67, which may be good against a stranger, or wrong-doer, but not available against the real owner, who holds the bona fide paper title. Lund v. Parker, 3 N. H. 49; Hubbard v. Little, 9 Cush. 475. It is sufficient to say that Haven’s entry upon this lot by his agent will give him a constructive possession of all which his true paper title covers. Tappan v. Tappan, 31 N. H. 41. Weseeno reason to find fault with the ruling of the court, in admitting Pierce to testify on this point. Nor do we see how the defendant was injuriously affected by his testimony. We therefore overrule this exception. As bearing upon the question of fraud, the main point in issue between the parties, it appears to us, the court, who tried the cause, was sufficiently indulgent to the defendant, in allowing him to state what his father and others had represented to him, both before, and at the time, he bought lot 66, as to its boundaries and extent, and that it was a large lot, and in a wide range. Generally, the written description in the conveyance of the land gives the party the highest kind of testimony as to the amount conveyed. In the absence of the best evidence, we sometimes go to secondary sources for information. Here, to rebut any and all presumption that the party had intended to misrepresent the quantity of land he had conveyed to plaintiff, he was permitted to explain what his father and others had told him in relation to the quantity of land embraced in his deed. We do not see upon what grounds the defendant can now make complaint. We think he had all the opportunity the law could rightfully give him to enlighten the jury. As to the amendment of plaintiff’s declaration, we think it material that the declaration should embrace such allegations as would substantially show the original contract, as made between the parties, and that this contract included within its terms, or was expected to include, the two tracts .of land which now constitute the amendment in this case. Plaintiff was deceived-by the false representations made with reference to these lands. In actions founded on torts, connected with contracts, so much of the contract must be stated, as is necessary to describe the wrong, and so much qualifies the nature and character of the wrong. Webster v. Hodgkins, 25 N. H. 128. The extent of the wrong could not be made intelligible, nor the just foundations laid for damages in this case, if we were to allow the omission of these lands from the declaration, or a proper reference to them. The declaration, as amended, sets out what plaintiff understood the entire contract to be, and indicates clearly the wrong of the defendant, and shows the jury how they could make indemnity, at the same time, preserving the form of the original action, and the identity of the cause of the same. If the form of the action be not changed, and the identity of the cause of action be preserved, the particular allegations in the declaration may be changed by amendment, and other allegations may be superadded, in order to cure imperfections [383] and mistakes in the manner of stating the plaintiff’s case. Stevenson v. Mudgett, 10 N. H. 338. In this instance, we think the court properly exercised the power of amendment as to the terms. It does not appear that the amendment occasioned any material delay of the cause, or any particular surprise to the defendant. It appears to us the only just ground for allowing terms would be, in the nature of punishment, upon the plaintiff, for not exercising due care in the preparation of his declaration. And for his negligence in this behalf, we impose the sum of five dollars. Judgment on the verdict.