¶1 I do not quite see how the declarations of the plaintiff Albion Richardson, testified to by the witness Burt, bore upon any issue tried in the case; but if they were immaterial, they were clearly harmless, and I do not think the verdict should be set aside for the reason that they were received. The question to the defendant, whether his valuation was increased after he bought the land, was properly excluded. The fact called for was immaterial and irrelevant; besides, if admitted, it would amount to no more than the opinion of the selectmen, proved by hearsay.
¶2 The verdict settles the fact of title gained by the defendant by more than twenty years' adverse possession. The only question is, whether the instructions were correct. I think they were, to say the least, sufficiently favorable to the plaintiffs. I see no reason why the defendant's occupation and claim, under the deed of Philip Richardson, executed February 19, 1850, and recorded September 13, 1853, did not amount to an ouster of the plaintiffs. It is a general rule, as I understand it, that if one tenant in common claim possession of the whole under a warranty deed from a stranger, it is a sufficient ouster — Siglar v. Van Riper , 10 Wend. 414
¶3 Judgment on the verdict. *364
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Case posture Posture TROVER, for one undivided half of three lots of pine logs, taken from certain premises in Madison, in this county, and converted by the defendant to his exclusive use in 1869, 1871, and 1873. Plea, the general issue.
None of the plaintiffs have lived in Madison for the last twenty
years, except Mr. and Mrs. Forrest; also Albion P. Richardson, who is now 31 years of age, and has not resided in Madison since he was 14 or 15 years of age, except one or two years about 1870. Robert A. Richardson is 37 years of age. He left home when he was 14 years of age, and has not resided there since. He has been home at times on visits, a week or so at a time, at times once or twice a year, at other times once in two years. The female plaintiffs are married, as set forth in the writ. The plaintiffs introduced a deed from Isaac S. Davis to Phebe Richardson, dated December 14, 1844, recorded April 16, 1874, of one undivided half of the Philip Jackson pasture (so called), situate in what is now called Madison, formerly a part of Eaton, containing 26 acres (the material parts of that deed sufficiently appear in the opinion of the court); also, an office copy of deed Noah Davis to Isaac S. Davis, dated March 7, 1837, of one undivided half of the same premises; also, deed Isaac S. Davis, executor of the will of Moses Davis, deceased, to Asa Jackson (the defendant), dated Nov. 29, 1845, of one undivided half of the same premises.
The evidence tended to show that the logs were cut by the defendant upon the premises in dispute in 1869, 1871, and 1873, and converted by him to his exclusive use.
The plaintiffs, who sue in their own right, are the children of Phebe Richardson by her husband Philip Richardson, and were all living at the date of the deed to their mother, who died in June, 1845, in possession under said deed of one undivided half of said premises. The defendant introduced a deed from Philip Richardson, the husband of Phebe Richardson, to Asa Jackson, dated February 19, 1850, recorded September 13, 1853, of one undivided half of said premises. The defendant's testimony tended to show that the premises were adjoining his home farm; that previous to February 19, 1850, his cattle strayed from his own land upon the Jackson pasture, and fed upon it; that, after he bought the undivided half of the premises of Moses Davis, executor, he called upon Philip Richardson for a division; that they made a parol division of the premises; that he undertook to put up the fences on his half, trim up the trees, and improve the same; that he derived no benefit from his efforts, because Philip Richardson neglected to keep the fences on his half in repair; that Richardson asked him to buy his half, which he did, February 19, 1850, — and since that time has been in the exclusive possession of the premises, trimming up the trees, cutting out the underbrush, doing up the fences, paying the taxes upon the premises, and claiming to own the whole estate. No particular fence was built between Philip Richardson and the defendant.
One Burt, a witness for the defendant, testified as follows: I know where the Jackson pasture comes to the road. I know Albion Richardson, one of the plaintiffs. [He asked me if I had bought a piece of land of his father (another piece included in the same deed to Phebe Richardson). He said he thought his father had no right to sell it to me. It was eight or ten years ago.] I asked his father to show me the deed. He did. I saw Albion again, and he asked me now it run.
I said it was my opinion it run after his mother's death to the two boys. He said he should claim it. He asked if the deed was recorded. I said I thought not. That part of his testimony included in brackets was admitted, subject to the plaintiffs' exception.
The plaintiffs ask the defendant, upon cross-examination, the following question: Do you know whether your valuation was increased, for the purposes of taxation, after you bought this land? The testimony was excluded, and the plaintiffs excepted. The defendant had testified on his main examination that he paid the taxes upon the premises after the deed to him from said Philip. The defendant claimed to have acquired a title to the premises against the plaintiffs by adverse possession. The plaintiffs requested the court to instruct the jury that the burden of proof is upon the defendant to show conclusively actual knowledge or notice in some way on the part of the plaintiffs; that the defendant claimed the whole premises adversely to them, and that the statute of twenty years' limitations commences to run from the date of such knowledge or notice, and that such claim must be continuous; — also, that each one of the several plaintiffs must have such knowledge or notice to be affected thereby.
The instructions asked for were not given, unless included in those which were given, which were as follows: Possession alone will not be sufficient proof of an ouster by one owner against the other owners, for, where both have an equal right to the possession, each will be presumed to hold under his lawful title till the contrary appears. An ouster in such case, therefore, must be proved by acts of an adverse character, — such as (1) claiming the whole estate himself, (2) denying the title of the plaintiffs, or (3) refusing to permit them to enter; that a bare taking of the profits of the land would not of itself amount to an ouster, but that an undisturbed and quiet possession for a long time is a fact from which an ouster may be found by the jury; that actual notice to the plaintiffs was not necessary; that it would be sufficient if the defendant acts were such as to give presumptive notice, — that is, if his acts were such that the plaintiffs ought to have known, under all the circumstances of the case, that he was in possession, claiming to hold exclusively; that the owner may be charged with knowledge of what is done openly on his land, and of a character to attract his attention; that the presumption of notice arises from occupation long continued; and that notice of the claim may be presumed as far as the occupation indicates that a claim exists, and the deed or color of title serves to define specifically the boundaries of the claim or possession. To the refusal to instruct, and to the instructions given, the plaintiffs excepted.
It appeared in evidence that Philip Richardson dies in May, 1874; that, from the date of the deed to his wife, in December, 1844, to the date of his own death, he lived upon one of the other tracts conveyed by said deed; and that after the death of Phebe Richardson his wife, he was married a second time. His second wife died in May, 1874, a short time after his death.
No timber was cut upon the premises in dispute till 1869, from which time the plaintiffs counsel claimed the statute of limitations commenced to run if at all, in this case.
The deed from Davis to Phebe Richardson, after death, remained in the hands of Philip Richardson without being recorded till April, 1872, when, upon the request of Robert A. Richardson, it was delivered to him by his father in the same condition in which it now is, and was recorded by said Robert in April, 1873. The only knowledge the plaintiffs had of the existence of such a deed prior to April, 1872, was derived from information to that effect. It did not appear that any of the plaintiffs except Robert and Albion ever saw the deed.
The trial was conducted by the parties upon the theory that Phebe Richardson took a life estate only under the deed to her, and that her husband, Philip, was not tenant by the courtesy after her death: whether she took anything more than an estate for life was not raised upon the trial. It was conceded on both sides that the deed was originally made to Phebe Richardson; and that subsequently an attempt was made to alter it by writing Philip over the name Phebe wherever it occurs in the deed. When or by whom the alteration was made did not appear. The original deed may be referred to in the argument.
Verdict for the defendant, which the plaintiffs more to set aside, and for a new trial for supposed error in the foregoing rulings, and as being against law and the evidence. The case was tried before SMITH, J., and the questions raised were transferred by him. Source: CourtListener
