Corbett v. Norcross

EastmaN, J.

The demandant in his writ claims a tract of land in this county, containing many thousand acres, called El-kins’ Grant. On the trial, however, which was had upon the plea of nul disseizin, he claimed only sundry lots and parts of lots conveyed to him by Joseph Robbins; some in 1845 and some in 1848.

These lots are described by numbers and ranges, varying from one to sixteen in the number of the lots, and from one to fourteen in the number of the ranges; and we propose first to consider the title of Robbins, the demandant’s grantor, to these lots, and also the title of the tenants, independent of the question of uncertainty in the deeds, the want of reliable plans, and the ground taken that there has never been any division of the tract.

The deed of the Elkins Grant was given by the Treasurer of *110 the State, on the 31st day of August, 1830, in consideration of $800, in accordance with a resolution of the legislature, approved July 3,1830, to Jasper Elkins, Samuel H. Walker, Jacob Sargent, Jr., Ebenezer P. Elkins, John Eaton, and David Perkins, all of Thornton. These were the original grantees of the land, and both parties claim under them.

Perkins, one of the six grantees, never accepted the grant, or paid any consideration therefor. The whole evidence in regard to him tends to show that he never had any connection with the business after the passage of the resolution by the legislature, and refused to accept the grant or to consent to the same. Ebenezer P. Elkins, another of the grantees, assumed to take Perkins’ share, and settled for the same, and the other grantees acquiesced in that course. The bond to the State for the consideration was given by the five.

It is clear that Perkins never paid or contracted to pay any consideration for the grant, and never accepted the same, and consequently never had any title thereto. No man can make another his grantee without his consent; and a deed made and executed with all the requisite formalities, and even entered upon the public records, is null if not afterwards accepted by the grantee. Harrison et al. v. The Trustees of Phillips Academy, 12 Mass. 461 ; Hastings v. Baldwin, 17 Mass. 552 . And a refusal to accept a grant may be shown by parol evidence. Thompson v. Leach, 2 Salk. 618; Townson v. Tickell, 3 Barn. & Ald. 31; Matthews’ Presumptive Evidence 35, and cases cited.

The estate then vested in the five grantees, after excluding Perkins, and the title of the parties, whatever they had, must be traced from them.

Most of the lots which the demandant claims were conveyed to Robbins in May, 1831, by deeds executed by Jasper Elkins, Jacob Sargent, Jr., and by Ebenezer P. Elkins, three of the original grantees of the State; and Robbins’ title to the remaining lots was traced to the original grantees — none of the deeds to him being dated later than 1834.

These deeds to Robbins are fair upon their face, and purport *111 to be for a good consideration. It is said, however, and contended by the tenants, that most of the lots were conveyed to Robbins to enable him to make sales for the original grantees : that they were mere voluntary conveyances, and void as to creditors. But without stopping to enquire whether the tenants, or their grantor, Walker, are in a position to take advantage of this objection, (a point which, upon investigation, would probably be found to be against them; ) assuming that the conveyances to Robbins, were for the purposes stated, and that the deeds were of the character claimed, it is a sufficient answer to this objection that the evidence in the ease shows that a valid consideration was paid by Robbins for such of the lots as were not re-conveyed by him. As one of the witnesses expresses it, “ What land we put in his hands he hadn’t sold, he either deeded back or paid us for. We settled all the dealings we ever had together.”

Another objection to the deeds of Robbins is, that Jasper El-kins, who had conveyed to him some of the lots, had parted with his title to the property in November, 1830, by deed given to Ebenezer P. Elkins.

With regard to this deed, the evidence tends to show thatit was made by Jasper to Ebenezer P., to enable him to sell the lots in New-Durham; that it was without consideration, and to be returned in case the land was not sold; that no sales were made, but the deed was accidentally not returned. But it is unnecessary to enquire into the consideration of this deed, as it appears to be fatally defective for want of due execution. It was made while the statute of 1829 was in force, and could not operate as a conveyance, even against the grantor and his heirs, for it was attested by one witness only. Stone v. Ashley, 13 N. H. 38; Gage v. Gage, 10 Poster 420. The deed purported to be witnessed by one McCoy and Jane Elkins. The attestation by McCoy was duly proved, and was unexceptionable, but the name of Jane Elkins upon the deed was a mere nullity. She was the wife of Jasper Elkins, the grantor, and her signature as a witness to her husband’s deed was no more than the name of the grantor himself as a witness. It appears also that she did *112 not write the name herself, but that it was written by Ebenezer P. Elkins, the grantee; whether by her consent or not is doubtful from the testimony. Moreover, this deed was not recorded till 1882, some months subsequent to the time when Jasper Elkins conveyed to Robbins, and no notice of its existence was given to Robbins. But even if this deed should be held good, it would only go to defeat the demandant’s title to the lots claimed under Jasjier Elkins. It could not affect those claimed under the other original grantees.

Thus far, Robbins’ title to the lots conveyed to the demandant stands well enough. He would appear to have been the owner of them all prior to 1835 ; and the demandant, having Robbins’ title, must succeed unless defeated by other matters not yet considered. The consideration paid by the demandant to Robbins is immaterial. The tenants do not claim under Robbins, either by deed or as his creditors, and are therefore not in a position to call in question the consideration.

We will now look at the title of the tenants. They claim by two deeds from Samuel H. Walker; one dated June 26, 1844, conveying four undivided sixths of the Elkins Grant, and the other dated July 3, 1844, conveying all that he acquired by the deed of William C. Thompson.

Walker was one of the original grantees, but he conveyed all his interest in the grant to R. M. N. Smyth, August 23,1830, soon after the deed from the State was given. And Eaton, another of the grantees, on the 25th of December, 1830, conveyed his interest in the grant to Sargent and Enoch Flanders; so that after this date the grant was held by the two Elkinses, and Sargent, Smyth and Flanders; Walker and Eaton giving place to Smyth and Flanders.

Whatever title then Walker had to the premises at the time he conveyed to the tenants, must have been, derived from the other grantees, because he had sold his share to Smyth; and, accordingly, to show that Walker had title to the four sixths conveyed to the tenants on the 26th of June, 1844, they introduced a deed from Ebenezer P. Elkins to Walker, dated May 9, 1843, con *113 veying one undivided sixth part of the grant; also a deed from Jasper Elkins to Walker, dated September 5, 1843, conveying an undivided sixth; and a deed from Elanders to Walker, dated May 4, 1843, conveying the same quantity. Primd facie, these deeds make out a title in the tenants to three undivided sixths of the tract. The tenants then attempt to show title in Walker to the other sixth conveyed in this deed, by introducing the deed of Noah W. Perkins — son of David Perkins, the original grantee, of whom we have spoken — to Walker, dated October 5, 1843, conveying one undivided sixth of the grant; the deed to be void unless the grantee indemnify the grantor against claims against his father or him concerning the land. Also the will of David Perkins, approved in 1835, in which was a general residuary clause in favor of his son, Noah W., but no mention made of land in this grant.

With regard to the other deed of Walker to the tenants, which was dated July 3, 1844, the tenants introduced Thompson’s deed to Walker, dated July 2, 1844, conveying all the interest acquired by him by deed of J. Sargent, dated June 10, 1841; and then the deed of Sargent to Thompson, dated June 10, 1841, conveying all his interest in all lands in Grafton county, including Elkins’ Grant.

It will thus be seen that Walker’s title, which the tenants have, was all derived from the original grantees or those who held their title, by deeds dated some ten years subsequent to those of Robbins. Robbins acquired his title mostly in 1831, and all before 1835, and Walker acquired his chiefly in 1843. Walker’s deeds cover the whole of the grant except the sixth, which fell to him, and which he conveyed to Smyth in 1830 ; while those of Robbins cover only a small part of it, being certain lots in different ranges. The grantors of Robbins are in part those of Walker, and, as stated at the outset, both derive their title from the same source.

The original grantees of the State were jointly interested in the land, and it was competent for them to divide the same among themselves by metes and bounds, and lots and ranges; or they *114 could convey their undivided shares without any division. They could make a partition, either by vote or by deed. Coburn v. Ellenwood, 4 N. H. 99; Atkinson v. Bemis, 11 N. H. 44; Frothingham v. Adams, 3 Mass. 352 ; Springfield v. Miller, 12 Mass. 415 . After a partition their interests would no longer be in common but in severalty, each one owning the share set off to him; and their conveyances would have to be made accordingly.

It becomes, therefore, a vital question in the case, whether there was ever any partition of this tract of land, binding upon the original grantees and those claiming under them. The de-mandant contends that there was, and that Bobbins, his grantor, acquired title to several parcels of the land, being the lots specified in his deeds to the demandant; while the tenants contend that there was never any division; that the tract remains in common unto the present time ; and hence that the deeds to Walker of undivided interests were good, and that his title must prevail over that of Robbins.

Was there or not, then, ever any partition of this tract? There is some evidence tending to show that there was. Jasper Elkins says that there had been a division of the land; that soon after obtaining the grant there was a meeting of the grantees at his house, and that Sargent and Ebenezer P. Elkins were present, but he was not certain in relation to Eaton and Walker; that he was himself chosen moderator and Sargent clerk, and acted as such at all subsequent meetings, and that he kept the records; and evidence was offered to the court of the loss of the records and of diligence in attempting to find them.

There was also a meeting of a majority of the proprietors on the 27th of January, 1831, at Boston, at which meeting it is agreed by the parties that lotsnvere set off to Smyth, who at that time was the owner of Walker’s share. And an examination of the deeds shows that these lots were thirty-nine in number, in different ranges of the tract, and one fifth of the whole number.

It is manifest that there was an attempt made to complete the partition of the tract, by the drawing of lots and the giving of quitclaim deeds, at the meeting on the 27th of January; and the *115 agreement shows that so far as Smyth is to be regarded, his lots were set off. We are aware that the agreement goes to the extent that there was no setting off of lots at that time, beyond those to Smyth, and we so consider it. But this does not exclude the inference from the testimony that an attempt was made to set off to others, and that a drawing of lots was had. It shows that the business was at that time completed only so far as Smyth was concerned; and Smyth it appears has never attempted to repudiate the division, or to claim beyond what was then allotted to him. The tenants and Walker make no claim under him.

As the case stands, upon a verdict for the defendants, the court cannot say that there was ever any legal partition of the tract among all the grantees, although there was evidence competent to be submitted to the jury upon that point. But we think that the tenants and Walker are estopped to deny that there was such a partition, and that the court are bound so to pronounce it.

It is well settled in equity that if a party is present and sees another sell and convey property to which he may assert a title, without disclosing his title, or objecting to the conveyance, and the sale is made with a full knowledge on his part, he will be estopped by his silence from setting up his title thereafter; because, under such circumstances, his conduct would operate as a fraud upon the purchaser, if he might afterwards take from him what he had thus permitted him to purchase, without objection, from one who claimed to be the owner. And this rule applies in equity to both real and personal property. Wendell v. Van Rensselaer, 1 Johns. Ch. 354 ; 1 Story’s Eq., section 385; Hobbs v. Horton, 1 Vernon 136; Marshall v. Pierce, 12 N. H. 127; Watkins v. Peck, 13 N. H. 360; Wells v. Pierce, 7 Foster 503 ; Heard v. Hall, 16 Pick. 457 .

It is contended, however, by the tenants that this rule adopted in chancery does not obtain at common law, at least so far as real estate is to be affected; and there are authorities which sustain this position, as some of those cited by the counsel for the defendants show. But ought the rule to be confined to courts of equity ?, It is clear that it obtains at common law as to personal property, *116 and that effectual relief may be administered at law in such cases without resort to equity. Thompson v. Sanborn, 11 N. H. 201; Pickard v. Sears, 6 Ad. & E. 474; 1 Term R. 762; 6 do. 556; Marshall v. Pierce , 12 N. H. 133, 134. And after a careful examination of the question, we are satisfied that in the application of the rule no well founded distinction can be traced between real and personal property.

In Runlet v. Otis, 2 N. H. 169, the demandant, a mortgagee, was present at and advised a conveyance of the premises from the mortgager to the tenant, without disclosing the existence of the mortgage, which was of an earlier date than the conveyance; and it was held that his conduct was fraudulent, and estopped him from recovering the land against the tenant. And in Morse v. Child, 6 N. H. 521, where one who had acted as an appraiser of land set off upon an execution was permitted to show that nothing passed by the extent, it was intimated in the opinion of the court that if the extent had been sufficient to pass the land, and the appraiser had asserted no claim when the extent was made, he could not have been permitted to set up a title against the extent.

In Marshall v. Pierce , 12 N. H. 127, the question is stated with a qucere, whether the rule applies to both real and personal property. The point was necessary to be decided in that case, but Grilchrist, J., in delivering the opinion, says that as the cases now stand in this State, Runlet v. Otis is an authority for the position that the rule in equity has been adopted here at law in relation to conveyances of land.

In Watkins v. Peck, 13 N. H. 373, Parker, C. J., after stating the rule in general terms, that a party is to be estopped on the ground of fraud, says that there does not seem to be any sound difference in this respect between a sale of real and personal property; and he cites Runlet v. Otis and Morse v. Child, as sustaining the observation. And the same distinguished jurist, in Parker v. Brown, 15 N. H. 184, which was an action at common law for covenant broken, says that a party is estopped to set up title where he has permitted his land to be sold and *117 conveyed under sucb circumstances that the concealment of his title would be a fraud upon the grantee, if he was permitted to set it up afterwards.

Perhaps the evidence to establish an estoppel in pais as to real estate, should be more clear and decisive than as to personal.. The sale and transfer of real estate is surrounded with more formality and solemnity than personal, and the title thereto is guarded with more care. But the ground upon which a party who stands by and sees his property conveyed with a knowledge of what is doing, and does not assert his rights, is to be estopped from after-wards asserting those rights, is that of fraud — fraud upon the purchaser; and it is difficult to see how that which is fraud in regard to personalty can be held honest as to realty.

In Heard v. Ball, 16 Pick. 457 , although it is said that the rule does not appear to have been adopted at common law, yet it was held in that case that the guardian of a person non compos, who had sold real estate belonging to his ward, under a license of court, and conveyed the same with a covenant that he was fully authorized to sell the granted premises, was estopped from setting up a claim in his own right to any portion of such real estate under a previous conveyance to him. And Wilde, J., in delivering the opinion of the court, says, that the general principle is well established, that a party is not allowed to plead or to prove any matter inconsistent with the terms of his deed.

Again: estoppels are binding upon parties and privies; privies in blood, as the heir ; privies in estate, as the feoffee, lessee, &c.; privies in law, as those upon whom the law casts the estate. Co. Litt. 352, a.; 1 Greenl. Ev., sec. 28; Treviwan v. Lawrence, 1 Salk. 276; Comyn’s Dig., Estoppel, B & E, 10; Shelley v. Wright, Willes 9 ; Grane v. Morris, 6 Peters 611 ; Carver v. Jackson, 4 Peters 83 ; White v. Perkins, 24 Pick. 324 ; Fairbanks v. Williamson, 7 Greenl. 96.

In White v. Perkins, 24 Pick. 324 , it was held that if one, having no title to land, conveys the same with warranty, by deed duly recorded, and he afterwards acquires a title and conveys to a stranger, the second grantee is estopped to aver that the grantor *118 was not seized at the time of his conveyance to the first grantee. See also wark v. Willard, 13 N. H. 389.

"With these suggestions as to the law we will examine further the facts. It will be recollected that at the meeting in January, 1831, the proprietors were Jasper and Ebenezer P. Elkins, Jacob Sargent, Flanders and Smyth; five of them— Smyth holding Walker’s interest, and Flanders Eaton’s. After this, in May, 1831, Jasper Elkins, and Sargent, and Ebenezer P. Elkins conveyed sundry lots in the tract, described by numbers and ranges, to Robbins. Smyth also made conveyances of lots, and Robbins subsequently obtained title thereto. In regard to Smyth, however, as before observed, the tenants do not claim under him, and he has never made any conveyances inconsistent with the division.

Soon after this attempted division, in January, 1831, various lots were sold .by each of the five to different individuals, and conveyances were made by them respectively, describing the land by lots and ranges, and they received payment for the same. All of them made conveyances of lots prior to 1835. They all stood by and saw the others make conveyances by lots and ranges, and all participated in the profits; and they cannot now be permitted to repudiate those conveyances upon the ground that there had never been any division of the land among them. Sargent and the Elkinses, who made the conveyances directly to Robbins, and Flanders, who stood by and saw what was done, are not now to be heard to say that these conveyances are all void because there was no legal partition of the grant. It would be a most palpable fraud for the owners- of common land to represent it as divided and set off into lots, and to sell agreeably to such representation, and then turn round upon the purchasers and deny a division.

But it is said that Walker is not to be estopped by what the Elkinses and Sargent and Flanders did, because he had no notice of the doings. He is, however, privy in estate with them, and upon general principles, as we have seen, would be bound. But aside from the law, the facts will not warrant the position. *119 "Walker was one of the original grantees of the State, and, as has been stated, sold to Smyth in August, 1830. But after the meeting in January, 1881, he conveyed to Smyth thirty-nine lots in the tract, describing them by lots and ranges; and he thereby not only showed that he had knowledge of the partition, but recognized it as valid and effectual by his deed.

All of Walker’s grantors, therefore, except Perkins, as well as Walker himself and the tenants, are estopped to deny the division of this tract into lots and ranges, and a partition among the proprietors, as specified in the demandant’s deeds. As to Perkins, we have already seen that he had no interest or title to convey. His ancestor refused to accept the grant, and never did accept it or pay any consideration therefor. The ancestor therefore had no title to the property, and the heir could not take by will what the ancestor did not own.

A further objection to the demandant’s right of recovery is, that his deeds are void for uncertainty; and it appears that there was never any laying off of the land into ranges and lots upon the ground. There was, however, a plan made by Cummings after some partial surveys, dividing the tract into ranges and lots. Upon this plan the proprietors acted in making their sales and conveying the lots ; and we see no difficulty in running out the tract from this plan and the boundaries given in the deed from the State to the original grantees. In that deed the corners of the tract are distinctly stated ; the length of the lines between the corners can be ascertained, and then the tract be divided into the number of ranges and lots designated on the plan. The lots were supposed to contain two hundred acres, but that is not material. After the tract is marked off into ranges and lots agreeably to the plan, as near as may be, the lots sold to the demand-ant and others can be found, and they will take the quantity which the lots shall contain, be it more or less. That is certain which can be made certain. In point of law the lots can be run out according to the plan, and a jury could not be permitted to find to the contrary.

The reference to a plan in some of the deeds as being in the *120 county records or Secretary’s office, is not material. It is but falsa demonstration which non noeet. The history of the transactions shows that the court can give an interpretation to the deeds, and can understand what the numbers of lots and ranges mean ; and the descriptions will therefore answer.

After a protracted and tedious examination of the mass of papers in this case, and the questions arising upon the same, we are satisfied that the verdict taken for the defendants should be set aside, and that, according to the provisions, of the case, a verdict should be entered for the lots specified, and that there should be judgment upon that verdict. There is no question which we think requires to be sent to the jury.

In arriving at this conclusion we have not omitted to examine all of the points taken for the tenants, both in the case as drawn and in the arguments furnished, and made at the bar. The principal points, however, as we view the case, are those which we have stated and endeavored somewhat to discuss; the others being incidental to them. They might all be discussed with more particularity did we deem it necessary, but the decision of the case does not seem to require it.

Verdict set aside and judgment for the demandant.