Gage v. Gage

• Decision Date: 19 July 1888
• Parties: GAGE v. GAGE.
• Court: New Hampshire Supreme Court

14 A. 869

64 N.H. 643

GAGE

v. GAGE.¹

Supreme Court of New Hampshire. Merrimack.

July 19, 1888.

Appeal from a decree of the probate court accepting the report of a committee appointed to make partition of land owned in common by the parties in equal shares. Facts found by the court. The committee, without any fraud or corruption, but by mistake, made an unequal division of the estate, and set off to the appellee a portion of much greater value than to the appellant. One of the reasons of the appeal stated was: "Because said committee, mistaking the law that should govern in such cases, took views of the premises, and heard evidence, suggestions, and arguments bearing upon the question before them, in the absence of the appellant, in consequence of which the inequality and error aforesaid arose."

Chase & Streeter and D. Barnard, for plaintiff. W. G. Buxton and Bingham, Mitchell & Fletcher, for defendant.

BLODGETT, J. While some of the objections to the report of the committee of partition have no validity, and others might be obviated by a recommitment, there is one at least which is fatal. It appears that among the lands subject to partition there was a tract of timber-land, and that the committee, without the knowledge or consent of the plaintiff, employed one Barnard to examine the timber, and give them his estimate of the quality and value; that he went with them upon the land, (no other being present excepting that the plaintiff and his son saw them there, but not knowing the purpose for which Barnard was present,) and after a careful examination gave them his estimate in the absence of the parties, and at a time of hearing of which neither party had notice; and that to some extent the estimates so made and received in evidence influenced the committee in the unequal division of the estate between the parties which is found to exist. In the face of these facts it is useless to go further in this case. The proceedings detailed were manifestly irregular and erroneous in law. The committee, without fraud or corruption, unwittingly fell into a plain mistake, whereby injustice was done. For this mistake and injustice the report was properly set aside at the trial terra. It was the only adequate remedy. Exceptions overruled:

ALLEN, J., did not sit. The others concurred.

1 Reported by W. S. Ladd, official reporter of the New Hampshire supreme court.