Inhabitants of Greenfield v. Inhabitants of Camden

Peters, J.

This action is to recover for supplies furnished to David Gordon, wife and minor children, paupers in the town of Greenfield. The facts disclose that David is the son of John Gordon, Junior, whose father was John Gordon, Senior, and that David had a brother first known as John Gordon, Third, and *61 that all of them lived in the early part of the present century in the town of Camden. John Gordon died and was buried in Camden "a few years before the war of 1312.” John Gordon, Junior, died in Greenfield in about the year 1850. John Gordon, Third, died during service in the war of 1812. David lives in Greenfield.

The case does not disclose that David has any settlement in the state, unless he takes derivatively the settlement of his father, which the plaintiffs contend the father obtained by being an inhabitant of Camden when that 'town was incorporated on February 17, 1791. Upon this hinge, in our view of the facts, the case turns.

Bearing upon this question the following facts, objected to by the defendants, are relied upon by the plaintiffs : First, papers upon which John Gordon, Junior, obtained a revolutionary pension, being his own sworn declaration, and the accompanying affidavits of two other persons many years deceased, to the effect that ho was born in blow Hampshire in 1764, and lived in Camden from his early youth until he removed therefrom in about the year 1813. However much weight these papers may have morally, they are not legally admissible. As to strangers, they are hearsay merely, and do not, in the main facts sworn to, come under any of the exceptions which make hearsay admissible. The only admissible fact contained therein is the declaration of the pensioner that he was born in 1764. The law receives his statement of the date of birth, but many authorities refuse to receive such evidence of the place of birth, in settlement cases. 1 Green. Ev. § § 125, 555; 1 Whar. Ev. § § 208, 821; Wilmington v. Burlington, 4 Pick. 174 ; Hall v. Mayo, 97 Mass. 416 ; Adams v. Swansea, 116 Mass. 591 .

The next item of evidence presented is the copy of a deed from the registry of Lincoln county, dated October 12, 1786, in which John Gordon, Junior, deeded to Peter Ott land iu Camden, in which deed the grantor is described as " of a place called Camden in Lincoln county.” There can be no mistake that John Gordon, Junior, was the father and not the grandfather of David, inasmuch as the distinction is well kept up between the two names, *62 as evidenced by subsequent conveyances and by various allusions to the two persons in subsequent records of the town. The testimony of several aged persons who are called as Avitnesses confirms the fact. The recital of John Gordon, Junior’s, residence in this deed is competent evidence tending to show that fact. It is an act done ante litem motam, a part of the res gestae, the actors in which are not noAv supposed to be living. Oldtown v. Shapleigh, 33 Maine, 278; Ward v. Oxford, 8 Pick. 476 .

The next item in the chain of proof is found in the records of the town clerk of Camden for 1791 and succeeding years. It is needless to argue that the town records are competent proof of the matters found therein. No matter whether they were kept with technical accuracy or not. They pertain to the res gestee, are the acts of the town, and are ancient historical records. These records disclose that on April 15, 1791, the selectmen laid out a road, describing it as running, among other boundaries, "by John Gordon’s lot,” and "to John Gordon, Junior’s, house.” On the same day a road was laid out " from Clam Cove to John Gordon, Junior’s.” In the same year there was an article in the town meeting warrant, " to see if the town vvould accept a road laid out from Mr. Ott’s to John Gordon, Junior’s” ; and the town voted to accept " a road laid out from Clam Cove to John Gordon, Junior’s,” and "not to accept a road laid, out from Peter Ott’s to John Gordon, Junior’s.” In 1791 there also appears a record of a road " leading to a road that leads to J ohn Gordon, Junior’s,” and the town in that year " accepts the road which comes into the road that leads from Clam Cove to John Gordon, Junior’s.” In December, 1791, John Gordon (Senior,) of Camden, conveys land to William Thompson.

The town clerk’s records and registry of deeds show the following facts : That "John Gordon, Junior, of Camden,” on June 2, 1792, conveyed land to E. Gay; that on April 4, 1793, "John Gordon, Junior, of Camden,” conveyed land to W. Hewitt;, that, on April 1, 1793, the town accepted a road, running in one of its boundaries "to J ohn Gordon, J unior’s, fence;” that in the same year, John Gordon and John Gordon, Junior, were the first two signers of a petition for the call of a town meeting; that in 1794, *63 tbe selectmen make return of a road, "to the road that leads from Clam Cove to John Gordon, Junior’s ; that, on January 8, 1795, "John Gordon, Junior, of Camden,” conveyed land to Robeson; that, on June 18, 1795, William Thompson conveyed land in Camden "to John Gordon, Junior, of Camden;” that, on April 23, 1798, Joseph Pierce convoyed land in Camden "to John Gordon, Junior, of Camden,;” that, on October 30,1800, "John Gordon, of Camden,” conveyed land to E. G. Dodge, signing and acknowledging the deed as "John Gordon, Junior,” and Mary the wife of John, Junior, joins in the deed to relinquish dower, while the wife of the father was not Mary but Jane Gordon; that, in 1806, John Gordon, Junior, was accepted by the town as a bondsman of a town collector; that, in 1807, land in Camden was conveyed to and also by "John Gordon, Junior, of Camden;” and that in the years 1808 and 1809, "John Gordon, Junior, was chosen hogreeve.”

All the assessment and valuation lists of the town that can be found, up to the year 1813 inclusive, comprising the years 1801, 1804, 1805, 1806, 1807, 1808, 1809, 1811, 1812 and 1813, contain the names of John Gordon and John Gordon, Junior; and John Gordon, Junior, was constantly taxed as the possessor of a considerable real estate, and as a resident of the town. We think the tax exhibits sustain the position taken by the plaintiffs’ counsel, that after 1808, the probable date of the death of John Gordon, Gordon, Junior, was taxed by the ñame of Gordon, Senior, and Gordon, Third, as Gordon, Junior. A glance at the lists shows it.

Then comes the question, do all of these facts combined prove, prima facie, that John Gordon, Junior, .had his residence in Camden, on February 17, 1791? We think such a prima facie case is made out.

By the deed of October 17, 1786, John Gordon, Junior, declares that he was of Camden at that date. That meant more than that he was bodily there. We think it meant that he was residing and dwelling there. Those were days when a man was not apt to have different residences, or a domicile in one place and a residence in another. Best, in his work on evidence, says *64 that the place where a person lives must be taken, prima facie, to be his domicile. 2 Best Ev. *535. No doubt, such a declaration in a deed would amount under many circumstances to but slight evidence. But its importance here arises somewhat from the feet that probably not the slightest other legal evidence can ever be adduced in relation to the whereabouts or residence of the grantor at that time. Its 'importance is increased from the fact that it is not inconsistent with any other known event. And it is to be weighed with the further fact that the father of the grantor lived and died in Camden, and we have no information that he ever lived anywhere else.

Now what inference or presumption should be drawn from this statement in the deed ? The plaintiffs claim that the presumption is, prima facie, that Gordon lived in Camden so long as the ■contrary does not appear. This position is resisted by the defendants, who say it cannot be possible that a continuous residence of five years can be inferred from the proof of one day’s residence at the beginning of the five years. Some authorities seem to support the plaintiffs’ proposition. But it may be difficult to lay down any general rule upon the question. Each case must stand upon its own circumstances. We have no doubt that the presumption of continuance applies to residence as to many other conditions in life, and that we should assume that Gordon’s residence in Camden in 1786 was a continuing residence. The presumption is one of fact, or perhaps a mixed presumption, that is, a presumption of fact recognized by the law. And for how long any man’s residence should be presumed to continue unchanged, must depend upon the circumstances and the judgment of the tribunal which is to draw a deduction from the circumstances. The less the opportunity to obtain evidence of '¡actual, continuance of residence, the stronger may the presumption be.

In 2 Whar. Ev. § 1285, it is said: "We may hold, as a presumption of fact j more or less strong according to the concrete case, that a party is presumed to continue to reside in the last place known to have been accepted by him as such residence. The same inference is applicable to the settlement of a pauper, *65 and to domicile.” The same author says in the same volume, § 1284, under the head of "presumptions of uniformity and continuance':” "We are therefore to understand that the presumption of continuance is simply a presumption of fact, whoso main use is in designating the party on whom lies the burden of proof. In this sense we are justified in holding that the continuance of an existing condition is a presumption of fact, dependent for its intensity on the circumstances of the particular case. But the question is one dependent upon the relation of conditions to time. In fact, so far from continuance being a legal presumption, in things dependent upon human purposes, the presumption, in the long run, is the other way. "Man never eontinueth in one stay. ” In Wood’s edition of Best on Evidence, 2 vol. § 405, in note, the American editor says : "When a man’s residence is once shown to have been in a place, it will be presumed to continue there until the contrary is proved. But presumptions of the continuance of a given state of things only exists in reference to such matters as are of a continuous nature. That is, such a state of things as would be likely to continue, unless interrupted by other causes outside of the relations themselves. The fact that a person is seen on the street to-day does not warrant the presumption that he wdll remain there forever, or even five minutes; but if a person is shown to be in the employment of a person to-day, he will be presumed to remain in that person’s employment until the contrary is shown.”

But we have no occasion to determine what the effect of the recital in the deed might be standing alone. We are called upon to pronounce • what its force and effect shall be when taken in connection with other important facts which are a part of the evidence. It appears that Gordon, Junior, was in Camden in April, 1791, less than two months after the incorporation of the town, and for many years continuously afterwards, dealing in real estate, owning considerable real and personal estate, and taxed therefor. And it appears in several ways that during this period of time he was acting the part of a considerably important *66 citizen. It is evident enough that on April 15, 1791, he was the occupier if not the owner of a house. This fact throws much light upon the question of previous locality and condition. If we find a man living in a house to-day, we may very well infer that he was there yesterday, and there may be a presumption that he was there for days or weeks or months before that time. All would depend upon the surrounding circumstances.

The two conditions, a residence before February, 1791, and a residence so soon afterwards, when taken in co-operation, bear with great force upon the position that there was an intermediate and continuous residence. The maxim, probatis extremis, pres-sumuntur media, applies. The probability that there could have been no change is geometrically stronger. Added to this is the fact of a residence in the same town for two decades and more after 1791, and there is nothing to indicate a residence in any place out of the town till the removal in about 1813.

It certainly cannot be necessary to prove in any manner other than by circumstantial and presumptive evidence that he lived in the defendant town on the day of its incorporation. Any fact may be proved by indirect or circumstantial evidence. It could hardly be pretended that, if there were no question that a man was residing in a house of his own on the day before and on the day after a given day, he would be presumed to have been residing there on the intermediate day, if nothing exists to indicate the contrary. And it cannot be a breach of good reasoning to infer the same thing, where the gap to be supplied is a wider one, if the evidence is strong enough to justify it. Nor is a contrary doctrine upheld in Kirkland v. Bradford, 30 Maine, 452. The head-note in that case misrepresents the facts, as presented by the reporter.

The defendants further contend that, even if John Gordon, Junior, dwelt and had his residence in Camden on the day of its incorporation, he was not a legal inhabitant at the time. But this point is plainly overruled by the decisions in Maine and Massachusetts. The' territory being a township or plantation merely, all citizens thereon were made thereby inhabitants with *67 privileges alike. Fayette v. Hebron, 21 Maine, 266, and cases there cited.

The defendants contend that it does not appear that Gordon, Junior, was a citizen oven. The facts related in this opinion, which are admissible in evidence, are sufficient to show that he' was. Cummington v. Springfield, 1 Pick. 394 .

Action to stand for trial.

AppletoN, C. J., Barrows, Danfortu, Virgin and SxmoNjds,, JJ., concurred.