Burnham v. Porter

Perley, J. The statute of 1789, which remained in force till 1822, provides as follows: “ The judge of probate shall appoint five freeholders to make distribution of the real estate, which being made and returned to the judge, under their hands, or the major part of their hands, upon oath to their impartiality therein, and accepted and allowed by said judge, shall be valid.” Statute of 1789, § 4; Laws, Ed. of 1815, p. 208. This statute has always been held to authorize the judge of probate to cause partition to be made among heirs, and dower — 578 — to be assigned to the widow. Pinkham v. Gear, 3 N. H. Rep. 167. In this case five freeholders were appointed on the committee; a report was made and signed by three of them, which the judge accepted and allowed. This, it is to be observed, brings the assignment of dower within the literal provision of the statute. But the defendant contends that the intention of the statute must have been to require all the members of the committee to act, though the report of three was sufficient. Nothing in the record shews whether the other members of the committee acted, and no other evidence was-offered on that point. It would seem probable that a statute on such a subject, which had continued to be the law of the State for more than thirty years, must have received a settled practical construction which ought not now to be disturbed. The court have taken the liberty to make inquires of the Hon. Charles H. Atherton, whose large general practice and long official connection with the probate court have made him extremely familiar with all questions relating to this branch of the law in New-Hampshire. Mr. Atherton has been obliging enough to' communicate the information that we desired; from which it appears that in Hillsborough county numerous reports of committees appointed' under the statute of 1789, and signed by three, and by four of the five members, were accepted and allowed by the judge, and in no instance is any statement found in the report, or any memorandum on record, to shew whether the other member or members acted. Mr. Atherton is not able to say when or how this practice originated, but conjectures that it commenced under the provincial statute. He says that it continued down to 1822, though cases where part only of the committee reported were not so numerous after 1815. It would seem, therefore, that this assignment of dower was made according to the practice established under the statute then in force, and we think it must b.e held to be valid. The assignment of dower being valid, the plaintiffs are not barred by the statute of limitations, because their title did not — 579 — accrue till the widow’s death in April, 1844. Till that time the defendant held under his conveyance from the widow of her life estate. The authorities cited to shew that the plaintiffs are estopped to set up the title of Dolly Hall, because she stood by and saw the sale made to the defendant without objection, do not appear to be in point. They apply to a case where a man, claiming to own land, and having an apparent right to sell, conveys the land, and one having a conflicting and secret title, stands by and encourages or permits the sale, without disclosing the secret title which he afterward undertakes to set up. Wilton v. Harwood, 23 Maine 131. In this case the demandant’s title was not concealed when the defendant purchased. On the contrary, it was not only stated at the time, but Dolly Hall and her guardian then promised to convey it to the defendant. The defendant was not deceived by any misrepresentation or suppression of the facts, but he relied on a promise which has not .been performed, and which, not being in writing, is void under the statute. If the promise had been in writing, and on sufficient consideration, it would have been binding, providing the party making it had legal capacity to contract; but even in that case the promise to convey would not be a conveyance; it would give no legal title to the land, and could not be set up to defeat this suit at law. The plaintiffs do not in this case seek to recover by rescinding or repudiating a contract. They claim by descent from their ancestor, and not under the defendant, or by virtue of any contract made with him. Wherever a man had made a verbal contract for land, on sufficient consideration, he could hold the land under the verbal bargain, if the defendant can do it here. To admit such a doctrine would wholly supersede the statute, which requires conveyances of land to be in' writing. Nor is this at all like the case where a party disputing a will seeks to recover a legacy under it. The plaintiffs claim nothing under the defendant, or under any contract or arrangement with him. — 580 — There is no ground of fraud on which the plaintiffs can be estopped to claim the land. According to the case made by the defendant, they have simply broken a verbal contract to convey the land. Where one has paid the price of land on a verbal agreement for a purchase, and has entered with the assent of the owner and made improvements, the case is taken out of the statute, which requires the contract to be in writing, and courts of equity will decree a specific performance of the verbal contract. Newton v. Swasey, 8 N. H. Rep. 14; Tilton v. Tilton, 9. N. H. Rep. 385. Rut even in such a case there is no conveyance, and the legal title remains in the former owner. It is not necessary in this case to decide whether here is evidence of a contract which the defendant could enforce in equity. There would, however, be obvious difficulties in his way. The defendant had an estate for life, and a right to enter into the land under that title, and his entry would be presumed to be according to his title, certainly till the contrary were shewn. He needed no assent of the plaintiffs to warrant his entry and subsequent possession. Dolly Hall was an infant, and had no legal capacity to assent nbr to make the bargain, and her guardian having no license to sell, had no authority to bind her by his assent. The bargain, when made, was clearly not binding on Dolly Hall. It would not be easy to find in the case a legal consideration for the promise of Dolly Hall to convey. Nothing was paid to her or her guardian as the price of the land. What the guardian received he received from Samuel Hall in discharge of the debt that Samuel Hall owed his ward. Securing the payment of this doubtful debt might have been a sufficient consideration if Dolly Hall had been of capacity to agree; but she received no more than her due, and the guardian had no power to bind her by an undertaking to convey her land. If a legal consideration for the promise of Dolly Hall can be found in the case, her declaration made to her guardian that she would convey, is not sufficient to ratify the promise of an infant. It was a mere declaration to a third person. Orvis — 581 — v. Kimball, 3 N. H. Rep. 314; Hoit v. Underhill, 9 N. H. Rep. 436. But the verdict must be set aside for the admission of Undex’hill’s deposition. A will written on several sheets of paper, and signed only on one, has been held to be sufficiently executed; but a will is an entire thing, and signing it in one part might well be understood as a signing and execution of the whole. But in this case there were two independent blank certificates, each proper to establish a separate fact. It would by no means follow that signing one of them was intended as an authentication of the other. The certificate is an official document, and ought to be in such form as to exclude doubt. In Regina v. Shipston, 8 A. & E. N. S. 119, the court say that nothing is easier than to have their documents in regular form, and to avoid all questions. And in Holte v. Routen, 4 Johns. 130, the following language is used on this subject: “ The manner of executing the commission ought not to be left to inference, but should be jdainly and explicitly stated. It would be an inconvenient precedent, and might lead to great abuse, to establish the validity of such loose and informal returns.” The case of Powers v. Shepard, 1 Foster’s Rep. 60, shows that much exactness is required in the jurat certified on an affidavit. We think that signing one of these blank certificates can not be taken by the court to be a signing of the other. Nor will the subsequent amendment by the magistrate x'emove the objection. If the deposition should be offered on a future trial, the certificate is now sufficient, and the deposition would then be competent. But when offered on the former trial, it was not taken according to the statute which requires the magistrate to certify the oath; and his certificate is the only evidence that can be received. Amory v. Fellows, 4 Mass. 219. The making of the certificate is not merely evidence of what the magistrate did; it is one of the things which the statute requires him to do, and until that is done there is no deposition taken according to law. — 582 — This is different from evidence of the magistrate’s official qualification. If he was in fact a magistrate, and has done all that the law required, the deposition is complete. Evidence of his official capacity is collateral, not required to be in the caption of the deposition, and, being addressed to the court, may be supplied after trial. Verdict set aside.