Jones v. Merrimack River Lumber Co.

Woods, C. J.

Neither party shows any other title to the land than possession only.

Samuel H. Walker, under whom the defendants derive their title, entered upon the lot in 1836, and offered to sell it to a person who accompanied him in the entry. At that time he held a deed of it, executed to him by Thomas Walker, who held a deed of the lot from Barron, a collector of taxes. Walker then made an entry upon the lot, exercising the right of an owner, and offering, as owner, to sell the lot. That was a distinct assertion of title to the land, and can bear no other construction whatever. He entered the lot with a deed of it, and claiming it under and by force of the conveyance. His claim must, therefore, be regarded as co-extensive with the deed under which he claimed. Riley v. Jameson, 3 N. H. Rep. 27 ; Jackson v. Wheat, 18 Johns. 40 ; Jackson v. Ellis, 13 Johns. 118 ; 4 Mass. Rep. 418 .

His deed purported to convey to him the entire lot, and his claim, therefore, embraced the whole lot when he entered.

Such entry and claim constituted a sufficient seizin and title in Samuel H. Walker as against any one not showing an older or better title ; and so also in the defendants, who now hold all that he acquired in the land. Lund v. Parker, 3 N. H. Rep. 50 .

The entry of the plaintiff was subsequent to that of Walker, and was, like his, under a deed marking the extent of his claim. But that of itself did not give the plaintiff a sufficient title as against the defendant’s elder possession and claim.

And we think that the mere fact that there -were no lines marked by Walker on the lot, and no traces or monuments left by him, indicating his entry and claim, could not make any difference as to his rights acquired by the entry and possession. And we are of the opinion that such entry, claim and possession as are shown on the part of Walker, *385 and the continued claim made in that chain of title, as is denoted by the deed of warranty from him to Fisk & Nor-cross, and by the deed from Fisk & Norcross to the defendants, must be regarded as giving a good and valid title as against the plaintiff, upon all the facts stated in this case.

The title of each party is derived, as we have seen, from mere possession, under deeds of no validity and of no use, excepting to mark the extent of their several claims. The defendants showed in those under whom they claim, the older possession under deeds and with claim of title. That gives the defendants a good title against the plaintiffs, until their possession and claim are shown to have been abandoned. Wendell v. Blanchard, 2 N. H. Rep. 456. A title, acquired by possession merely, may, however, be lost by abandonment of it. Such a title may be surrendered to another, by mere abandonment or surrender of possession, in favor of that other. Blaisdell v. Martin, 9 N. H. Rep. 253 , and cases there cited. But the question whether Walker or the defendants have ever abandoned the title acquired by Walker’s entry and claim, has not been tried; and there is not enough upon this case from which the court can find and determine that, as matter of law.

Upon the facts disclosed by the report of the judge in this case, it is the opinion of the court that the defendants have the better title, and that the verdict should be set aside for error in the ruling.

The objection to the fourth interrogatory in the deposition of William H. Gordon, seems not to be well founded. It was one that might well have let in a full account of what the witness knew relating to the possession ; and although, if the evidence had stopped with the answer which was given to it, there might have been some question as to its competency or sufficiency; yet the sequel of the deposition seems to remove all such cause of exception. The witness has stated, indeed, that the plaintiff was in possession. But he has proceeded to explain his meaning in a *386 manner that has made the statement unequivocal, and confined it to matters strictly proper and relevant.

The verdict must be set aside and a New trial granted.