Amazeen v. Town of Newcastle

• Decision Date: 05 December 1911
• Parties: AMAZEEN et al. v. TOWN OF NEWCASTLE et al.
• Court: New Hampshire Supreme Court

81 A. 1079

76 N.H. 250

AMAZEEN et al.

v. TOWN OF NEWCASTLE et al.

Supreme Court of New Hampshire. Rockingham.

Dec. 5, 1911.

Exceptions from Superior Court, Rockingham County; Chamberlin, Judge.

Bill in equity by Mary O. Amazeen and others, heirs of Mary Elizabeth Martin, deceased, against the Town of Newcastle and others, to set aside a deed of real estate from the deceased to the town, or to declare the deed a mortgage, and for an accounting. The trial court on facts found dismissed the bill, and plaintiffs bring exceptions. Overruled.

Mary Elizabeth Martin lived in the town of Newcastle all her life and died January 4, 1908, in her 85th year. June 11, 1907, for the expressed consideration of "one dollar and other valuable considerations," she executed and delivered to Robert H. Harding, first selectman of the town, the deed in question. The deed contained the following: "The said grantor reserves the right to use the aforesaid premises as her home for and during the term of her natural life. * * * This deed is given upon the express condition that the said town of Newcastle will pay over to the said grantor a sum not exceeding two dollars per week to be expended for necessaries and to provide suitable medical attendance, clothing, and fuel for and during the term of her natural life, in such manner as in her mode of life she has heretofore been accustomed." Mrs. Martin had lived on the premises for many years. After the death of her husband, her son, and a relative who had lived with her, she lived alone for five or six years before her death. She was lame, but in fairly good health. Aside from this real estate and household furniture, she had no property except a deposit of $120 in a savings bank, which she reserved for the expenses of her last sickness and burial. The conveyance of the premises and furniture to the town in consideration of her support was proposed by her. Harding accepted the deed for and in behalf of the town, but without express authority from the town or his associates, and it was deposited with the town papers and duly recorded. The other selectmen, being informed of Harding's action, approved and consented. After receiving the deed, the town immediately assumed the support of Mrs. Martin, paid $2 a week as long as she lived, and cared for her as was necessary. At the time of the conveyance the buildings were out of repair. The town expended $203.07 in repairs and $122.78 for support of Mrs. Martin. The annual report of the selectmen for the year ending February 15, 1908, showing various disbursements for Mrs. Martin made in consideration of the deed, was accepted by vote of the town at the annual meeting in March, 1908. At the same meeting, under an appropriate article in the warrant, the town voted to authorize the selectmen to sell the Mary E. Martin house "now owned by the town" for not less than $1,000, and they subsequently sold it for $1,010. The allegations of want of capacity in Mrs. Martin to make the deed, of fraud in procuring it, and of mistake in its form, were found not to be sustained.

Page, Bartlett & Mitchell and Ernest L. Guptill, for plaintiffs.

Kelley, Harding & Hatch, for defendants.

PARSONS, C. J. The allegations of want of capacity in Mrs. Martin to make the conveyance, of fraud in procuring its execution, and of mistake in its form having been found against the plaintiffs, the only grounds upon which they now attack the validity of the deed are that the selectmen were not authorized by vote of the town to make the contract for support found to be its consideration, or to accept the conveyance. This means that the deed was without consideration and was never delivered as matter of law.

The first objection is not open to the plaintiffs claiming as heirs of the grantor. "A deed duly executed is conclusive evidence of the consideration against the maker; not indeed as to the amount, but as to the fact of the consideration paid. So that, as between the parties and those claiming under them, the consideration cannot be impeached for the purpose of defeating the conveyance." Prescott v. Hayes, 43 N. H. 593, 596, 597; Farrington v. Barr, 36 N. H. 86; Graves v. Graves, 29 N. H. 129, 144; Runnells v. Bosquet, 60 N. H. 38, 39.

Moreover, the contract for support found to have been the consideration of the conveyance has been fully performed by the grantee, the town. Mrs. Martin could have made the conveyance without any...