Finlay v. Stevens

Decision Date07 March 1944
Docket NumberNo. 3449.,3449.
Citation36 A.2d 767
PartiesFINLAY v. STEVENS et al.
CourtNew Hampshire Supreme Court

Transferred from Superior Court, Strafford County; Lorimer, Judge.

Writ of entry by Ida Finlay against Robert W. Stevens and another demanding possession of a tract of land in Dover. After a hearing before referee, the referee's report recommending that writ of possession issue to plaintiff and that defendants' motion for nonsuit be denied was accepted and approved by court, and a decree for plaintiff was entered. Defendants excepted to denial of their motion for a nonsuit and to numerous findings of fact and rulings of law. Transferred on defendants' bill of exceptions.

New trial.

Writ of entry, demanding possession of a tract of land in Dover. Hearing before a referee, who made a report recommending that a writ of possession issue to the plaintiff and that the defendants' motion for a nonsuit be denied. The report was accepted and approved by the court, and a decree for the plaintiff was entered. The defendants excepted to the denial of their motion for a nonsuit and to numerous findings of fact and rulings of law. Transferred by Lorimer, J., on the defendants' bill of exceptions. The facts appear in the opinion.

Keefe & Keefe, of Dover, for plaintiff.

Hughes & Burns and Walter A. Calderwood, all of Dover, for defendants.

PAGE, Justice.

The writ of entry is peculiar in two respects. First, the remedy seems to be recognized little, if at all, outside Massachusetts, New Hampshire, and Maine. Second, the remedy is essentially possessory and involves directly only the right of possession. Public Service Company v. Voudomas, 84 N.H. 387, 151 A. 81, 70 A. L.R. 480. By the very allegation of the writ, the defendant is in actual possession, and the immediate issue is whether the plaintiff has the right to possession. Only at times, and incidentally, are issues of title raised. There are cases in which title never comes in question. If A disseize B, and later C disseize A, A may maintain a writ of entry against C unless C can show a better right of possession. It may be that A has no title at all. If so, his lack of title is wholly immaterial, since the primary test is whether the plaintiff had possession under a claim of free-hold and was dispossessed by the defendant. Gibson v. Bailey, 9 N.H. 168, 174; Breck v. Young, 11 N.H. 485, 491. On the other hand, the weakness of the defendant's title is wholly immaterial if the plaintiff can show no right of possession or no dispossession by the defendant. Cheever v. Roberts, 82 N.H. 289, 133 A. 22.

That the primary purpose of the writ of entry is not to try title, and to cast the defendant if he can show no title, should be plainly apparent from the necessary allegations in the writ. The plaintiff must allege two facts and sustain the burden of proving them: (1) That, within twenty years of the date of the writ, he or one under whom he claims, was seized of the demanded premises, and (2) that within the same time the defendant disseized the plaintiff or his predecessor in title. New Parish v. Odiorne, 1 N.H. 232; Tilton v. Stanyan, 57 N.H. 489; Tappan v. Tappan, 36 N.H. 98; Rogers v. Biddeford & Saco Coal Co., 137 Me. 166, 16 A.2d 131; Stetson v. Grant, 102 Me. 222, 66 A. 480; Wyman v. Brown, 50 Me. 139; Sparhawk v. Bullard, 1 Metc., Mass., 95, 103; Wells v. Prince, 4 Mass. 64.

The very definition of seizin shows that possession is the nub of the remedy. Seizin is possession coupled with a claim of freehold. Towle v. Ayer, 8 N.H. 57; Straw v. Jones, 9 N.H. 400; Blaisdell v. Martin, 9 N.H. 253; George v. Fisk, 32 N.H. 32; Tappan v. Tappan, supra; Edmunds v. Griffin, 41 N.H. 529. A disseizin is more than a mere entry; the defendant must actually have gained possession of the premises, actually putting the plaintiff or his predecessor out of possession. Wendell v. Blanchard, 2 N.H. 456.

The necessities mentioned seem to have been overlooked below. Conceding that the possession that will clothe a plaintiff with seizin may be either actual or constructive it is always necessary to inquire, on a motion for a directed verdict, whether there is any evidence of record that the plaintiff has ever had possession of either sort. The plaintiff in this case claims possessory rights which she says are derived in connection with her chain of title. For the immediate purpose her chain of title is useful in explaining the free-hold claim under which any possession she has shown may be characterized. For the present, the plaintiff's chain of title may be taken to have originated in 1912 in M. Joseph Keeley, who in 1919 deeded to Frank E. Mulligan. Mulligan conveyed to John J. Brennan in 1919, and Brennan in 1921 to the plaintiff and her husband as joint tenants with rights of survivorship. The plaintiff's husband is now dead. A grantee under a deed is not presumed to enter and take possession, but if he does in fact enter he is presumed to enter according to the extent of his title. Graves v. Amoskeag Mfg. Co., 44 N.H. 462, 464.

There is only doubtful evidence that the plaintiff or her immediate grantor had actual possession of the disputed premises and was dispossessed within twenty years of the undisclosed date of the writ. Unless she shows such possession and dispossession, recovery is impossible. The evidence is vague and indecisive and is not followed by the necessary particular findings. The general finding that the plaintiff and her predecessors had possession under claim of right may, as far as appears, be based upon (1) a nonexistent presumption of entry and occupation, or (2) upon the erroneous supposition that they had constructive possession.

In 1886 Abbott L. Littlefield conveyed to Aaron R. Littlefield two tracts designated in the record as tracts C and D. Tract D lies between tract C on the west and land of the defendants on the east. It is a portion of tract D, contiguous to the defendants' land, that is in dispute. Aaron R. Littlefield died in 1908. There is evidence that he had possession of both tract C and tract D up to the time of his death and it may be assumed that he died seized of both of them. The only evidence of descent from Aaron is parol testimony that he left his property to Betsey,” his widow. Assuming, but not deciding, the sufficiency of this evidence, Betsey could acquire seizin of both tracts. She lived in a house on tract C. She induced Sophie Johnson, a foster daughter but not shown to be her putative heir-at-law, to come with her husband to live with her. On April 17, 1909, Betsey gave to Sophie a deed of a tract described by metes and bounds. The tract thus described is tract C. Tract D was not described. The deed was conditioned upon Sophie supporting Betsey for life and giving her a suitable burial after death. Betsey died early in 1912. Sometime between 1908 and 1912, the year being wholly uncertain, Sophie's husband Leighton Johnson made a garden on tract D. That is the only evidence of actual possession of tract D by either of the Johnsons prior to their conveyance to Keeley in 1912. The referee found that the occupation by Mr. Johnson of tract D was that of himself and his wife “as owners,” which may be understood to be equivalent to a finding that they had possession under a claim of freehold.

At this point we come back to the fundamental of seizin, which is possession. We still refer to the actual possession of tract D. It will presently appear that Mrs. Johnson had no title. Where a grantor has no seizin, and no title, seizin does not pass by the grantor's unaided deed; it will pass only if the grantee takes possession. And if the grantee does not take possession until after the supposed disseizor takes possession, the grantee cannot maintain an action even for trespass. Moore v. Hodgdon, 18 N.H. 144. A plaintiff who is not in possession when he claims to have been dispossessed must rely on the strength of his own title, and not upon the weakness of the defendant's. Everett v. Whitney, 119 Me. 128, 109 A. 386. And possession, admittedly in the defendant as of the date of the writ, is better than no title in the plaintiff. Stetson v. Grant, 102 Me. 222, 66 A. 480. If the plaintiff's immediate grantor have neither possession nor right of possession by title, such grantor cannot clothe the plaintiff with seizin. And if the plaintiff does not take possession before the defendant does, the defendant's right is good enough until the plaintiff shows a better one. Tilton v. Stanyan, 57 N.H. 489.

When the plaintiff offers no proof that she has ever been in possession, or even that her immediate grantor had title with possession, she cannot recover. Graves v. Amoskeag Mfg. Co., 44 N.H. 462.

Possession by a remote ancestor in title, not followed by possession in the demandant or in any intermediate ancestor in title, will not sustain a writ of entry. Hastings v. Merriam, 117 Mass. 245. Priority of actual possession by the defendant is markedly in his favor. Cheever v. Roberts, 82 N.H. 289, 293, 133 A. 22. Though a remote ancestor in title has both title and seizin, recovery may fail if no seizin is shown in intervening grantors. Nichols v. Todd, 2 Gray, Mass., 568, 570.

The next question is whether there is any evidence of constructive possession upon which the plaintiff can establish seizin prior to the defendants' possession. It may be remarked here that the record discloses no finding as to when the defendants' possession was taken. We are therefore thrown back upon the question whether there was any evidence of constructive possession within twenty years prior to the date of the writ. Since not even the date of the writ is given to us, we must cover a period of thirty years or more, in order to be safe.

The deed from Abbott L. Littlefield to Aaron R. Littlefield, May 26, 1886, described tract C by metes and bounds. It also described tract D by bounds. Both descriptions are complete and unambiguous. Tract D is bounded on the west by...

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4 cases
  • In re Creger
    • United States
    • U.S. Bankruptcy Court — Western District of Virginia
    • April 17, 2009
    ...the description by metes and bounds is unambiguous, the added clause `being the same' creates no ambiguity." Finlay v. Stevens, 93 N.H. 124, 130, 36 A.2d 767, 771 (1944) (citing Malette v. Wright, 120 Ga. 735, 741, 48 S.E. 229, 231 (1904)). The Finlay court noted that "the same" could be in......
  • Town of Newbury v. Landrigan
    • United States
    • New Hampshire Supreme Court
    • August 21, 2013
    ...bounds description will prevail over a general reference to a prior deed in a "meaning and intending clause." See Finlay v. Stevens, 93 N.H. 124, 129, 36 A.2d 767 (1944). Moreover, as the trial court observed, "lot 4 as it existed in the 1935 conveyance from the Town to [the original owner]......
  • Raber v. Lohr
    • United States
    • Colorado Supreme Court
    • September 11, 1967
    ...not affect its validity.' (Part in parenthesis added.) Morrow v. Morrow, 382 S.W.2d 785 (Tex. Civ.App.1964). And see: Finlay v. Stevens, 93 N.H. 124, 36 A.2d 767 (1944). There are, of course, other rules on interpretation of deeds that would prevent the result urged by the Lohrs and found b......
  • Page v. Downs
    • United States
    • New Hampshire Supreme Court
    • October 31, 1973
    ...deeds are unambiguous and therefore the reference to the 1857 deed cannot be considered under the rule stated in Finlay v. Stevens, 93 N.H. 124, 129-130, 36 A.2d 767, 771 (1944). Under the rule of Finlay, when the description is unambiguous, the reference to a prior deed may not be used as ......

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