South Hampton v. Fowler

Isaac W. Smith, J. The possession of Souther, unexplained, would have been evidence of title in himself. In the absence of proof to the contrary, he would be presumed to hold and claim for himself. But his declaration, accompanying the act of possession, shows that he held [200] not for himself but for the plaintiffs. Such declarations are not only competent to rebut a title set up by or under the party who made them, but are affirmative evidence of title in the party for whom the person in possession declares that he holds it. Bradley v. Spofford, 23 N. H. 446, and authorities cited; Putnam v. Osgood, 52 N. H. 151, and authorities cited. Such declarations are held admissible as part of the res gestee. Bell v. Woodward, 46 N. H. 315; 1 Gr. Ev., sec. 109. The case finds that the land described in the writ was in dispute, which means that the whole close was in dispute. It is not clear whether Souther occupied any part of the premises within the fence, but assuming that he did not, as claimed by the defendant in argument, yet it appears that at the trial the defendant claimed that Souther held under the license and permission of the defendant’s .ancestor. The defendant’s position is, that his ancestor under whom he claims was seized of the whole close described in the writ, as well that part without as within the fence, and that Souther occupied as tenant of his ancestor. The plaintiffs also claimed the whole close. Souther’s declarations, which the plaintiffs offered to show, had a direct bearing upon the title of the defendant; for Souther denied the title of the defendant’s ancestor to so much of the premises as he occupied, and the character of Souther’s occupation bore upon the question of the defendant’s ancestor’s title to the premises of which Souther occupied a part. We think the evidence was wrongfully excluded. 2. The case finds that the defendant offered evidence tending to show title or an undivided interest in the whole premises in himself as a defendant of one Jacob Fowler. The fact of the descent of Richard Fowler from Jacob Fowler being first established, it was then competent to admit the declarations of Jacob Fowler, now dead, that he was the grandson of Samuel Getchell. 1 Gr. Ev., sec. 103, 104; Waldron v. Tuttle, 4 N. H. 371; Mooers v. Bunker, 29 N. H. 432; Emerson v. White, 29 N. H. 482; Johnson v. Lawson, 2 Big. 86. But the declarations of Jacob Fowler that his grandfather, Samuel Getchell, once lived upon the premises, should have been excluded. It is nothing but hearsay testimony. It does not appear that Jacob Fowler ever had any personal knowledge that Getchell lived upon the premises, nor even that he got his information from Getchell or any other member of the family; nor does it appear that Jacob Fowler ever was in possession of the premises, except so far as the same may be inferred from the claim set up by the defendant of title by descent from Getchell. Declarations made by a person in possession against his interest are admissible, and assuming that Jacob Fowler was in possession at the time he made these declarations, they are declarations made in his own favor, in support of his title, of which his possession was only prima facie evidence, and they do not therefore come within any rule recognized in the books for the admission of such statements; and we think they should have been excluded. 3. The plaintiffs claimed that the unoccupied lands within the original limits of Salisbury became by the laws of Massachusetts the prop [201] erty of tlie town. The plaintiffs claimed, through Salisbury, to own the locus in quo. To rebut this claim of the plaintiffs, it was competent for the defendant to show that Salisbury did not claim to own the unoccupied land, and the extracts from the town records, read in evidence to the jury, were admissible as admissions by the town that these unoccupied lands were owned by commoners. It was competent for the defendant to show that other common lands than the locus in quo had been assigned to commoners or proprietors, as tending to show how the common lands in that town were ownéd and occupied, or, in other words, as showing an admission by the town that the title to these lands was in the commoners. 4. This is not a writ of entry, but is trespass. The alleged trespass is the erection and maintenance of buildings marked A B on the plan. As the jury, by their verdict, found that part of the close described in the writ on which the buildings were located belonged to the defendant, the defendant was entitled to a verdict of not guilty. There was no evidence that he had trespassed upon that part of the close which the jury found belonged to the plaintiffs. It was proper for the court to inquire of the foreman whether the jury included the place occupied by Fowler’s buildings within the large enclosure mentioned in their informal verdict, and the affirmative answer of the foreman must be taken to be the answer of the whole panel in the absence of any expression of dissent by his fellows. He only undertook to make known to the court, when inquired of, the result they had reached in the jury room, but had failed to express distinctly in their informal verdict. But for error in ruling upon the first two questions presented in this case, the verdict must be set aside and A new trial granted.