Wendell v. Moulton

Eastman, J. In this case, several questions have been saved for the decision of this court, and we will consider them in the order presented. The first question relates to the instructions requested to be given to the jury in regard to the interruption of Joseph Little’s possession in 1837. The verdict in the case was returned, not by the consent of the parties, as we understand was the fact when the cause was before this court at a previous time, but upon the consideration and finding of the jury. The plaintiffs’ counsel desired the court to charge the jury as though the facts were all admitted, and as though the jury were to take it for granted that what the plaintiffs’ witnesses said in regard to the matter was all true. But the court chose to leave the evidence to the consideration of the jury, while at the same time they gave the law to them substantially as desired by the plaintiffs. The in — 59 — structions requested were, that the evidence of the interruption of Joseph Little’s possession in 1837 was sufficient in law to prove it, and that the jury were not at liberty to find against it. The instructions given were, that if the jury believed, upon the evidence, that Wendell, as agent of the owner, and in the character of owner, entered upon the land in question, that constituted an interruption of any adverse possession of Joseph Little, which they were not at liberty to disregard. In other words, if the jury believed the witnesses, the possession was interrupted. But if, on the contrary, they did not believe them entitled to full credit, and that there was no such survey made as they testified to, or no one there representing Wendell’s interest, then it would not be an interruption. From a detail of the evidence as set forth in the ease, probably there could be little if any doubt, that the possession was then interrupted; still, we see no objection to the course pursued by the court in submitting the question to the jury under the instructions given. The question was» one of fact, upon which the law would apply after the facts were ascertained. But unless the facts were conceded by the defendant, which does not appear to have been the case, they must be found by the jury. The second question relates to the- transmission of the possession of the land from John Little to Joseph Little. The court declined to instruct the jury that there was no evidence on which they could find a transmission, and charged them that they might inquire whether there was any evidence of any deed or assignment, or transfer of interest, from John to Joseph, except of the bond. If there was no evidence except the bond, and we assume that to have been given in good faith, then the possession of John could not in any way avail Joseph, because John, holding under the bond, would not hold adversely; and Joseph, taking the bond and nothing else, would go into possession under that. — 60 — This point is not without its difficulty. The evidence bearing upon it we conclude was parol, since if the bond had been produced upon the trial, it would have shown for itself, when the assignment, if any, was made, and what was its character. The fact that Wendell made the deed to John in 1820, after he had received his payments, would seem to negative any assignment whatever of the bond to Joseph. If Joseph made the payments, and the bond was really assigned to him, why did not Wendell make the deed to him ? It would seem quite as likely, from what is stated, that Joseph made payments to John, and that John made them to Wendell, on the bond, and thus the deed would properly come to John from Wendell; and that in reality no assignment of the bond was ever made. If that was so, then John may have given to Joseph some deed or assignment of his right in the property. If something of the kind had not taken place, and Joseph had nothing to show for his right in the property but the bond, which in the regular course of business would be given up to Wendell when the deed was given by him to John, it was certainly very unusual that Joseph should have waited from 1820 to 1824 before he took any deed from John. It would be quite as probable that Joseph should have had some kind of a title from John at the outset, before making the payments, and that he rested on that title till 1824. The evidence also tended to show, that when in possession, Joseph Little and the others spoke of the property as their own ; and we think, upon the whole, taking all the circumstances of the case together, and the length of time that the property was held adversely, that the ruling may be sustained. The next question arises upon the request of the plaintiffs’ counsel for the court to instruct the jury that the evidence of adverse possession for twenty years, prior to 1837, was not sufficient to justify them in finding that fact. The — 61 — court declined to give the instructions as desired, and referred the question as a matter of fact to the jury.. What amounts in law to an adverse possession, must have been explained to the jury, as appears by the several instructions given. The sufficiency of the evidence being for them, they could decide upon it, under the instructions of the court as to what would amount to an adverse possession. - The request was that the court should instruct the jury, not that the evidence was incompetent, but insufficient. The province of the court is limited to the determination of the competency or incompetenoy of the evidence to be submitted to the jury, from which they may or may not make the requisite- inferences of fact; and to that extent only does the court exercise any discretion, in relation to mere questions of fact. To balance evidence, weigh probabilities, determine the credibility of witnesses, or draw inferences and conclusions from circumstances proved, belong to the jury. Pray v. Burbank, 11 N. H. Rep. 290. The fourth question arises upon the instructions given to the jury. No exception was taken to the legal position contained in the first part of the instructions, but it is said in argument that there was no competent evidence for the consideration of the jury, tending to show twenty years’ adverse possession by the Littles. An examination of the facts reported, however, shows this to be incorrect. The Littles had possession, of some sort, from 1807 till 1841, when Joseph conveyed to the defendant; and they all, during the time they were in possession, always spoke of the property as their own, and claimed it as their own, though on some occasions, when they spoke of it, they claimed under the bond of WendelL Twenty-five acres of land in reality belonged to James, by the exchange which took place in 1807, and had it not been for the bond then given for the fifty acres, James would have been entitled to a conveyance from Wendell of the twenty-five acres; and — 62 — if he was induced to take the bond by artifice and fraud, it ought not to interfere with his right, and those who claimed under him. Again, if John Little made any conveyance to Joseph, other than the transfer of the bond, twenty years prior to 1837; or if the jury were satisfied that the possession was not interrupted in 1837, so that there would be twenty years between the time of the deed in 1820 and the eon? veyanee to Moulton; in such event the possession would be made out. We think there was evidence competent for the consideration of the jury, whatever may have been their opinion as to its sufficiency. But the latter branch of the instructions is excepted to as ambiguous, and as having probably misled the jury. The part particularly objected to is as follows : “ but if in this case the bond was fully performed, the possessibn would be adverse.” It is said that the phraseology should have been if the bond “ had been ” fully performed, the possession would be adverse. That expression would no doubt have been preferable; and were it not for the explanation given in the case, we might be led to suppose that the jury were perhaps misled, and that they might have understood the court that if the bond was at “ any time ” paid, the possession would be adverse. But when it is said in the case that the defendant’s counsel had contended, and the court had previously charged, that the possession would be adverse after the bond was paid, and not before, and when the evidence seems to show clearly that the bond must have been paid prior to 1820, when the deed was given, we do not see how there could well be any misunderstanding about it. No objection was made to the phraseology at the time the instructions were given, although they were read to the counsel upon both sides, and probably none' then occurred to any one. A verdict will not be set aside — 63 — for ambiguity in the language used by the court, when it is quite apparent that the jury were not misled. Hannum v. Belchertown, 19 Pick. Rep. 311; Raymond v. Nye, 5 Met. Rep. 151. It is to be presumed that the jury understand the instructions given to them by the court, and if counsel have reason to apprehend that they do not, it should be suggested at the time of the trial, in order that the judge may be more explicit. Lathrop v. Sharon, 12 Pick. Rep. 172. Passing to the next point, we find it founded upon the directions given by the court to the jury, that if the Littles were led to make their claim to the land under a bond from Wendell, by any fraud or artifice of Wendell, such possession might, notwithstanding, be adverse. It is now said in argument that there was no evidence of fraud or artifice, on the part of Wendell, to induce Little to take the bond. The case, however, finds that no, exception was taken on the trial that there was no evidence tending to show fraud, and that the point was discussed by the counsel on both sides; and we might, in accordance with the well settled practice in this State, decline to consider the exception, as being unseasonably taken. But we will look at it notwithstanding. On examining the facts reported, we find no direct evidence of fraud; at the same time circumstances are disclosed from which an argument could legitimately be drawn to that effect. In 1807, Wendell agreed with James Little, who had previously made improvements upon other lands of Wendell, that if Little would give up those improvements he would give him twenty-five acres upon any other lot which Little might select. Little, at that time, was entitled by the agreement to twenty-five acres, and he selected a spot upon a part of the land now in dispute. But Wendell, instead of giving him a deed of the twenty-five acres, made an agreement to give him a bond of fifty acres, upon his paying for the other twenty-five. This may — 64 — all have been perfectly honest and fair; at the same time, the question readily suggests itself, why did not Wendell give Little a deed for the twenty-five acres which were paid for, and a bond for the other twenty-five. And when this is considered in connexion with the fact that the bond, when given, did not cover the land selected, it can hardly be contended successfully, we think, that here were no circumstances and no evidence tending to show fraud. And if the bond was fraudulently given, it cannot now be used to defeat an adverse title to lands which it did not cover. The possession must have been open and visible and well known to Wendell, and if the bond was a fraudulent instrument, it could not avail either to make a title or defeat one. The law laid down by the court, in regard to the land west of the brook, which is the next question presented in the case, was correctly stated. Hale v. Gliddon, 10 N. H. Rep. 397; Smith v. Hosmer, 7 N. H. Eep. 436. The only difficulty connected with the point is as to the evidence. Had a verdict been ordered by the court we should be inclined to hold that it must be set aside, because the character of the fence, and the nature and extent of the occupation are not certain, so far as we can judge by the report of the evidence. But the question having been referred to the jury, and they having passed upon it, they must have decided whether the possession was open, visible, exclusive, continued, and marked by definite boundaries or not. They could tell the quantity of land thus occupied, if any, and whether the possession shown was such as the court described or not. If the fence was so permanent and so defifinite and fixed, — which the jury could learn by the testimony of the witnesses, — as to make the possession certain and marked by definite boundaries, then the defendant would be entitled to hold it, otherwise not. The evidence was competent to be submitted to them, and whether the possession was such as the court described, the jury — 65 — could and must have judged. And their verdict, under the instructions, settles the matter. Upon the next point, also, the law was correctly given to the jury. In considering the second point, we come to the conclusion that there was evidence competent for the jury to consider, in deciding whether John Little gave a deed to Joseph, in 1816 or 17. If a deed was then given, it would fix the possession under claim of title, for twenty years would elapse before 1837. That evidence, coupled with the claim of the Littles to the land from the beginning, was competent to be submitted to the jury, under the guarded explanation of the court, that no presumption could be made inconsistent with the evidence. There can be no doubt of the correctness of the general proposition laid down by the court, and from the evidence in the cause, we can discover no injury that could result to the plaintiffs from the instructions as given. The instructions in regard to the title necessary for a tenant to. have, in order to entitle him to recover for betterments, were correct, and in accordance with the statute upon that subject. Any person, against whom any action may be brought for the recovery of real estate may, with his plea, file a brief statement, setting forth that he and the person under whom he claims, have been in the actual peaceable possession thereof, under a supposed legal title, for move than six years before the action was commenced, and that the value thereof has been increased by them by buildings or other improvements. Rev. Stat. ch. 190, § 6. It is not necessary that the occupants show a paper title, as contended in the argument. Any species of title, which, if valid, would be a legal one, is sufficient; and if the occupants, in good faith, suppose their title to be a legal one, whatever its character may be, the requirement of the statute is answered. But we think the court erred in rejecting the evidence tending to show the condition of the premises at the time of — 66 — the trial. The object of the statute is to compensate the tenant for actual improvements made by him, and no more. And when shall that value be tested ? What does justice require between the parties 1 The tenant continues to occupy the land until the judgment is recovered against him. It is then that the premises are surrendered; and the amount which the demandant should pay for the betterments should be their value at the time the tenant ceases to occupy. Between the time of the commencement of the action and its termination the improvements may have become materially lessened in value, and the demandant should pay for no more than what he receives. The tenant, too, occupies in good faith, and if he has really and honestly improved the premises, he should have the value of the improvements at the time he surrenders them. The case does not show the precise finding of the jury upon the question of betterments, but we notice, by the argument of counsel, that they found the tenant entitled to $9,76, which is stated to be the same amount fo.und upon the former trial. The plaintiffs’ evidence upon this point having been erroneously excluded, the verdict must be set aside on that account, unless the tenant will remit the amount found for betterments. This he may do, if he sees fit. Sanborn v. Emerson, 11 N. H. Rep. 57. There being no question made as to the correctness of the ruling in regard to the receipt on the Whitney bond, the •only remaining matter for consideration relates to the ruling upon the question of boundary. On reading the whole case, we do not see how any question of boundary, as is often understood to exist between adjoining owners, and to which the authorities cited by the plaintiffs refer, could arise in this case. Where the lines which were run in 1837 were is not controverted. There is no conflicting evidence jipon that point; nor is it in dispute that they were run according to the bond; but the great controversy between the parties is, whether the defendant can hold beyond those lines by — 67 — possession. If there was any question where those lines were, the inquiry would present another aspect; but that matter not being in dispute, and there being no pretence that Joseph Little then surrendered his right to the land beyond the limits of the boundaries, we agree with the court below in saying that we do not deem that any question of boundary arose so as to require the instructions demanded. If the tenant shall remit the amount awarded fot betterments, there may be judgment on the verdict, otherwise the verdict must be set aside.