Hill v. McNichol

• Decision Date: 27 February 1888
• Citation: 13 A. 883,80 Me. 209
• Parties: HILL v. MCNICHOL.
• Court: Maine Supreme Court

13 A. 883

80 Me. 209

HILL

v. MCNICHOL.¹

Supreme Judicial Court of Maine.

February 27, 1888.

Motion and exceptions from supreme judicial court, Washington county.

Assumpsit against the administrator of an estate to recover the sum of $10,800, with interest for 20 years. The opinion states the facts in full. The verdict was in favor of the defendant, and the plaintiff filed a motion for new trial on the ground that the verdict was against the evidence, and also alleged exceptions.

S. C. Strout, for plaintiff. Baker, Baker & Cornish, E. B. Harvey, L. G. Downes, and Geo. A. Curran, for defendant.

PETERS, C. J. The primary question of this case is whether a deed, under which the plaintiff claims important interests, was ever delivered to her. The evidence on the point is scarcely at all contradictory, and strongly supports the verdict of the jury against delivery. A brief statement of the facts, excluding voluminous details which relate only to the question of damages, will render an elucidation of the case easy. The central historical figure seen in the facts is Abner Hill, who for more than a half a century resided either in this state or New Brunswick, engaged in the lumbering business on the St. Croix river. His several sons, as they grew up, participated in his business in different relations, without any change of ownership, apparent or proved, and without any contracts for compensation for their services. They continued on, after becoming of age, in the same manner as while under age. Any son wanting money for his use received it, while all were economical. Monroe Hill, another important figure in the scenes, was the oldest son, evidently the ablest in business respects, who naturally succeeded to the more difficult tasks of the business; the father and all the sons co-operating. All were employed. Mills, stores, and houses were owned by Abner Hill, who had undoubted commercial credit for many years. Monroe, being unmarried, lived at his father's home, until he died, in October, 1867. The only departure from these relations, up to the death of Monroe, that can be discovered in the books and papers and other evidence in the case, is that Monroe purchased and owned some real estate in his own name. There is a possibility that he became a partner with his father in some way, but the evidence is extremely meager which has any tendency to show it. In 1861, for some cause not disclosed in this case, possibly having connection with the then threatened civil war in this country, they doing business on the province side of the river, Abner conveyed to Monroe his interest in a block of valuable stores in Calais, the deed being at once recorded. On June 16, 1862, he conveyed to him certain valuable wild land, and this deed was immediately recorded. It turns up, after Monroe's death, that on the same day, June 16, 1862, Monroe made a warranty deed, purporting full consideration, of both the Calais stores and the wild land, to his mother, Elizabeth Hill, the plaintiff, which deed was never seen or heard of by any person who testified until within a few days after Monroe died, when it it was taken from a drawer in a bureau at the Hill house by the mother, and hurriedly sent by a special messenger to Machias to be recorded. There is every reason to believe that this act of the wife was intended to be kept secret, and that it was not known to the husband up to the time of his death, in 1873. It is by virtue of this deed that the plaintiff's claims are now made. From 1861 until 1872 all the property included in this conveyance remained in Abner Hill's possession, and under his management, by himself or through his sons, precisely as if never by him or his sons conveyed. His wife had no money to pay for it, and evidently paid nothing for it. It was never, in the life-time of her husband, taxed to her, nor insured in her name, nor did she before his death collect any rent or stumpages, or attempt or claim to, nor were any collected on her account or in her name. In no way did she assert, by any word or act disclosed in the case, any claim, under the deed of 1862, while either the son or husband was alive. That she had intelligence enough to do so is displayed by many things done by her concerning the property afterwards. In 1866, Monroe sought a partition of the stores between himself and other owners, as if his property. In 1870, her husband deeded to her some of the store property, referring to the partition made. And, as if she had not deeds enough, in 1871 he deeds to his son George A. Hill the same property, and on the same day George conveys the same to his mother, making allusion to the same partition; such acts being utterly inconsistent with the idea of her receiving a valid conveyance in 1862. Among other participations in conveyances, she accepts a lease of an interest in the store property, which was already hers if the deed of 1862 was valid. Then comes a most significant piece of evidence, which is fairly a rebuke to her present claims. In 1871, the father retiring from active business, with his aid, by the use of his property, the living sons undertook to carry on business under the name of "Hill Bros." To furnish them a capital, and to enable them to retrieve some business disasters, Abner Hill made a mortgage, with other property, of this same wild land, which was already his wife's by the pretended deed of 1862, and she joins in the conveyance to release her dower therein; the conveyances of 1862 being unsuspected by the grantees in the mortgage. As required by the law of the province of New Brunswick, where the land is situated, she was examined before a magistrate, apart from her husband, as to the free exercise of her own will in affixing her signature, and she refused, after full explanation from the draughtsman, to execute the mortgage until after she had taken the papers home to personally examine and consider them. Though an admissible witness to all facts occurring after the death of Monroe, had she dared the ordeal of cross-examination, and thus having an opportunity to explain her acts and omissions since October 8, 1867, which make so strongly against her present claims, she did not see fit to testify. Even the original deed of 1862 to her was not found, and a copy was used at the trial. Obtaining a large property through uncontested conveyances from her husband and son, and remaining in undisturbed possession of the same ever after her husband's death, in 1872, she allowed Monroe's estate to remain unmolested until 1880, when she procured a friendly administration upon it in the name of her counsel. Being the only creditor, and procuring a representation of insolvency, she asks that the estate be sold to satisfy her demands against it, and sues to recover the following claims: For an amount clue under the covenants of warranty in the deed by Monroe to her in 1862, the incumbrance being a mortgage placed upon the property by some owner prior to Monroe, about $2,000; for services taking care of Monroe in his last sickness, about $800; for rents collected between 1862 and 1867, from the Calais stores, about $3,000; for stumpages taken from the wild land, in same time, about $5,000. She claims interest on these sums for 20 years or more. The property at which her claims are aimed, is real estate,...