Woods v. Banks

Parker, C. J.

Matters of history are evidence in certain cases, but if the history is not admitted it must be shown. 1 Stark. Ev. 62. Here nothing was offered. The charter *109 granted by the provincial governor of New-Hampshire cannot be presumed to have been valid in what is now Vermont, without any evidence upon the subject, if the matter is contested. The court are not to take judicial notice how far those grants extended, and how far they have been acted under, and furnish the foundation of the titles there. Some evidence should have been offered on this point.

Where certified copies of records are offered, it should appear that the officer by whom they purport to be certified had the right to the custody of the records, and was the person who had authority to furnish authenticated copies. The statute of Vermont, to the evidence of which no objection was taken, shows that town clerks there have the lawful custody of such records in certain cases, but it did not appear that this was such a case.

Where proprietary records are evidence, copies, certified by the officer having the lawful custody of them, have been admitted here : and there seems to be no reason for a different rule in relation to proprietary records which exist out of the State.

Copies of records existing out of the State, where the records are material, may be used also; because the originals are not within the jurisdiction and cannot be produced. A copy of an account on the books of a corporation has been held admissible. 8 N. H. Rep. 334 , Burnham vs. Wood.

In admitting copies of records it would be absurd to require a copy of the whole book. Copies of so much of the record as relates to the subject matter of the suit are allowed. But there should generally be an entire copy of the proceedings of a particular meeting, or any thing else done and transacted at a particular time. Records are usually in parts, and there should be a copy of all the matter made up and attested as a record at any particular time, so that the jury may have the whole evidence, and the courts be enabled to give the right construction to what was done. But where what relates to the matter in question is a distinct and independent record, a copy of that is sufficient.

*110 If the records had been sufficiently authenticated as the records of the proprietors of Brunswick, the acceptance of the charter and organization under it might have been inferred, nothing to the contrary appearing. “ Acts done by the corporation, which pre-suppose the existence of other acts to make them legally operative, are presumptive proofs of the latter.” Angell & Ames on Corp. “ Grants and proceedings beneficial to the corporation are presumed to be accepted, and slight acts on their part, which can reasonably be accounted for only upon the supposition of such acceptance, are admitted as presumptions of the fact.” 12 Wheat. 70 , Bank of U. S. vs. Dandridge.

“ A charter may be presumed to have been given to persons who have long acted as a corporation, and assumed the exercise of the powers of a corporate body.” “ Yet the very case supposes that no written proof can be adduced of a charter or of a vote of the corporators to accept the charter.” Ditto 71.

“ Where persons composing an intended corporation act under the charter, it amounts to an acceptance. It is usual, whenever a charter is pleaded, and no direct and express acceptance can be averred, to show such usage as could not have prevailed unless it had been received, and from which the court may necessarily infer an acceptance.” Angelí if Ames on Corp.

The evidence that the grantees named in the charter of the township in this case were acting under it, by making a division of it to the grantees, would be sufficient evidence of the acceptance of the charter by a due organization within the principle, nothing appearing in conflict with such presumption.

They were dividing to those named as proprietors.

It is not shown, however, that they divided this particular lot to any one.

And the plaintiff did not show any color of title to the lot in question by the deeds produced. A deed cannot be color *111 of title beyond what it purports to convey. The deeds to the plaintiff are merely releases of the right, title and interest of the grantors, Slyfield and Wells. They are color of title, therefore, not to lot 26, but only of the interest of Sly-field and Wells in the second and third division to the right of Camp, of which this lot 26 was a part. As it does not appear that Slyfield or Wells ever had any title derived from Camp, or were ever in possession claiming under him, these deeds form no color of title to sustain the plaintiff’s action. If they had nothing in the land, nothing passed or purported to pass by their deeds. 7 Conn. R. 250. And they furnish no evidence of the character or extent of any possession of the plaintiff for which color of title may be used. 4 N. H. Rep. 375 . No disseizin of the true owner, except at his election, would arise from an entry under such deed without open, visible possession. 14 Pick. 224 .

The next question is, whether the entry made by Stevens in 1833, by direction of the plaintiff, and his spotting the lines of lot 26, amount to a possession which will enable the plaintiff to maintain an action against one having no better title. In other words, whether this can be regarded as a possession of the lot.

The defendants object that if the proprietors allotted to Camp, he became seized, and that his title and seizin continue. It is true that if neither of these parties show title, the title may be in the proprietors of Brunswick, or in Camp or his heirs, if duly allotted to him.

But prior possession under claim of right has often been held good against a mere subsequent possession, without other evidence. 3 N. H. Rep. 26 ; Ditto 50, and auth. cited. The fact that a proprietary, or some person under them, may bo shown to have formerly had a legal title, is not such evidence of title in a third person as to rebut the claim derived from such prior possession. It does not rebut the seizin of the party, because he shows himself to have been actually seized. 4 Johns. 211 , Jackson vs. Harder. *112 If, therefore, the entry of Stevens upon the land, and the marking the lines of the lot by direction of the plaintiff, can be regarded as a possession of the whole lot, the plaintiff shows a title which is good against the defendants, who offer no evidence of title and are not shown to have entered until 1836 or 1837.

Prior possession, claiming title, if not of such a character as to be adverse to the true owner, except at his election, is, it seems, not only sufficient to entitle the party to maintain ejectment against one who subsequently enters, but he who so enters is denominated a trespasser upon him who is in possession.

Trespass may be maintained as well as ejectment.

The evidence of actual possession in this case is of the slightest character, but it seems to be sufficient. 2 N. H. Rep. 456 , Wendell vs. Blanchard.

Stevens, by direction of the plaintiff, with a view of taking possession of the lot, and under a claim of title, marked the lines of it; and this possession thus taken is good against one who can show no right whatever to enter upon the land.

It is not necessary to cultivate, or to build a fence, in order to take possession of land. An actual pedis possessio, with a marking of the boundaries by definite and distinct monuments, is good against one who subsequently comes, without any evidence of a right, to enter, and will entitle the party who has thus taken actual possession to maintain an action of trespass.

If the defendant can show that another has a better right than the plaintiff, who has thus taken possession but shows no other title, this may perhaps avail in the reduction of damages.

If the party in possession has not a title adverse to all others, any one who enters upon him and does a permanent injury to the freehold, must be liable also, it would seem, to the action of the lawful owner for such damages as he has sustained by the entry.

*113 There is no principle upon which a mere disseizor can oust the true owner of a right to recover damages for an injury to his land, by instituting an action and recovering them himself.

It is not necessary, however, to pursue this consideration of the right to damages farther at this time.

The plaintiff’s possession is prima facie evidence of title. There is nothing in the case now to rebut it. The defendants show no pretence of title under which to justify their subsequent entry. The proprietors of Brunswick do not seem to have asserted any right for a long period. There is matter in the case leading to an inference that the proprietary has long since been dissolved. Nor does Camp, or any one claiming under him, appear ever to have asserted any right to this lot, or to have taken any possession of it. There is in fact nothing to lead to a supposition that the defendants can be made liable to the action of any other person. The possession of the plaintiff, then, and the evidence of title which it furnishes, stands wholly unimpeached, and entitles him not only to an action of trespass, to recover damages for any injury done to the possession, but also to an action of trover, for the conversion of logs cut upon the land; and on the evidence before us he may recover the value of such as have since been taken by the defendants.

But the evidence of the declarations of the laborers were not competent evidence to show that the logs which lay by the river had been cut upon this tract. They were not made by any agent of the defendants, having authority to make admissions in that particular. Elliott appears to have been employed by the defendants to cut and haul timber from the lot. The persons whose declarations were offered in evidence, were his servants merely for that purpose. If the declarations maybe said to relate to the subject matter about which they were employed, (that is, the cutting of the timber.) they were not within the scope of any authority they possessed. Story on Agency, § 134—139.

*114 “ The mere assertion of a fact cannot amount to proof of it, though it may have some relation to the business in which the person making that assertion was employed as agent.” 10 Ves. 123, Fairlie vs. Hastings.

Nor were they admissible as part of the res gestee. They did not tend to elucidate or give a character to any thing which was done at the time, or to the possession of those who made them; nor did they derive any credit from those acts or that possession, but depended for their effect entirely upon the credit of those who made them. 8 N. H. Rep. 260, 262 , Gordon vs. Shurtleff; 9 N. H. Rep. 271, 276 , Sessions vs. Little. There was a large quantity of pine timber on the bank of the river. The evidence that the part of it which they pointed out came from this lot, depended upon their veracity. The acts done gave no particular credit to their declarations.

For these reasons there must be a New trial.