Smith & Sargent v. Am. Car Sprinkler Co.

• Decision Date: 04 April 1916
• Citation: 97 A. 872,78 N.H. 152
• Parties: SMITH & SARGENT v. AMERICAN CAR SPRINKLER CO.
• Court: New Hampshire Supreme Court

97 A. 872

78 N.H. 152

SMITH & SARGENT

v. AMERICAN CAR SPRINKLER CO.

Supreme Court of New Hampshire. Sullivan.

April 4, 1916.

Young, J., dissenting in part.

Exceptions from Superior Court, Sullivan County.

Action of debt for a penalty by Smith & Sargent against the American Car Sprinkler Company. On defendants' exceptions. Exceptions overruled.

Debt for a penalty for cutting trees, chapter 244, P. S. Plea, the general issue, with a brief statement, admitting the cutting, but alleging the defendants' belief in their ownership of the land, and that the plaintiffs had no interest in it. The land upon which the cutting was done was lot 31 in the third division in the town of Lempster originally drawn to the right of the glebe and known as "church land." The plaintiffs claimed title under a warranty deed of said lot 31 from Orrin R. Howard, August 7, 1912, and traced their title through a warranty deed from Joe W. Bean to Howard, January 19, 1911; a quitclaim deed to Bean from the trustees of the Protestant Episcopal Church in New Hampshire, June 17, 1893; deed from the Trustees of Donations to the Protestant Episcopal Church, a Massachusetts corporation, to the grantor last above named, March 15, 1877, conveying to the grantees the so-called church lands in New Hampshire, copy conveyance by Alexander B. Griswold and two others, a committee authorized by a Diocesan Convention of the Eastern Diocese of the Protestant Episcopal Church to execute the same to the Trustees of Donations to the Protestant Episcopal Church, December 27, 1912, conveying all the so-called church land in New Hampshire. The plaintiffs also offered a lease from the Trustees of Donations to the Protestant Episcopal Church dated March 30, 1826 of lot No. 31 in Lempster for the term of 999 years. This lease was upon a yearly rent of $3. In it the trustees covenanted that, the lessee, or his assigns, having paid to them all rent in arrears, and having paid to them or their treasurer the sum of $50, the rent aforesaid, the right of said trustees to enter into said premises shall be utterly extinguished and in lieu thereof the said lessee or occupant or occupants of the premises shall hold and enjoy the demised premises by paying a mill a year only if demanded. There was evidence that Phineas Richardson lived upon lots No. 32 and 31, which were known as the "Phineas Richardson Place," and that he owned the lease of lot 31 originally issued to one Laurin Beckwith, and paid the rent on it for many years. Joe W. Bean, the grantor in the second deed of warranty introduced by the plaintiffs, was the son of Agnes Richardson Bean, and the grandson of Phineas Richardson. He testified his grandfather and mother agreed to give him the place if he would go down there and live there and fix up the buildings; that he did so, and the church lease was given him, but there were no other writings. After receiving the lease, Bean went with it to George L. Farwell, treasurer of the Trustees of the Protestant Episcopal Church in New Hampshire, paid the back rent due on the lease and the $50, and received the quitclaim deed introduced in the case. The defendants excepted to the introduction of this deed because authority for its execution in the officer executing the same was not shown. The deed bore on its margin a memorandum of a vote of the trustees November 17, 1892, authorizing the treasurer to execute the same, signed, "George L. Balcom, Clerk." The corporation records of the trustees November 17, 1892, did not contain a record of such vote. The present clerk was permitted to testify, subject to exception, that it was possible votes were taken which were not recorded, and that, from his knowledge of Mr. Balcom, he would expect he would not sign such a certificate unless it were true. The defendants also excepted to the evidence of the agreement between Joe Bean, his mother, and grandfather. The defendants offered in evidence: A deed from Read Bros. dated December 16, 1905, conveying "also that part of lot No. 31 in said third division which is not known as church land." Deed, Susie B. Hurd to Read Bros., with the same description, December 1, 1905. Quitclaim deed, Geo. W. Hurd to Susie B. Hurd, July 13, 1904, containing the following:

"Also one other lot containing seventy-five acres more or less, of said third division, being lot No. 31."

Tax collector's deed, Elbert E. Hurd to George W. Hurd, June 29, 1904, containing the same description. The record of the sale describes the property sold as:

"The Phineas Richardson farm (except the part of said farm as is owned separately from the other heirs by J. W. Bean)."

Deed, Elisha A. Huntley to Agnes Bean, August 25, 1871, of "a certain tract or parcel of land situated in Lempster known by the name of Timothy Green's heirs supposed to contain seventy-five acres more or less; also all our interest in or claim unto one other lot or tract of land situate in said Lempster, being lot No. 31 in the third division containing sixty-seven acres, and drawn to the right of the "Glebe." Deed from Phineas Richardson to Elisha A. Huntley July 20, 1871, conveying—

"a certain parcel of land situate in Lempster aforesaid, * * * it being the farm upon which I now reside."

The remainder of the description being identical with the foregoing. Mrs. Hurd was a daughter of Agnes Richardson Bean, there being four other children living at Mrs. Bean's death beside Mrs. Hurd and Joe. Elbert E. Hurd, the husband of Susie B. Hurd, testified that he acted for his wife in making the trade, but, subject to exception, the court excluded the inquiry made of him by the defendants whether the trade between him and Mr. Read called for the whole of Mrs. Hard's interest in lot 31. The court understood the inquiry to mean whether Mrs. Hurd intended to convey, not only the interest acquired by the tax title, but also any interest she might have in lot 31 as an heir of her mother. The defendants excepted to evidence as to the value of the timber, which was received by the court from certain witnesses. The defendants requested an instruction that, in the absence of a writing, Joe Bean did not acquire any interest in the land, and that his only interest was as an heir of Agnes, which gave him one-sixth of her in terest, if she had any, and that if Susie B. Hurd had an undivided interest in the timber as heir of Agnes, which was conveyed to Read brothers and by them to the defendants, they cannot be held in willful trespass for cutting the same, and excepted to such as were not given. The court instructed the jury that the defendants had no title, and that if Joe Bean was promised the farm and church land, as he testified, and if in reliance upon that promise he took possession and repaired the buildings, and the lease was turned over to him in fulfilment of the promise, Joe acquired a complete equitable title sufficient to authorize the plaintiffs to maintain this action. There were no exceptions to the charge.

Jesse M. Barton, of Newport, for plaintiffs. Joseph S. Matthews, of Concord, and Frank O. Chellis, of Newport, for defendants.

PARSONS, C. J. The defendants' contention that the statute upon which the action is founded has been repealed comes a little late, but is clearly open to them. Glover v. Baker, 76 N. H. 261, 262, 81 Atl. 1081; Petition of Moebus, 73 N. H. 350, 351, 62 Atl. 170; Hutchinson v. Railway, 73 N. H. 271, 272, 60 Atl. 1011. It may be conceded that the action is not compensatory, but punitory, that it is for a penalty (Morrison v. Bedell, 22 N. H. 234; Janvrin v. Scammon, 29 N. H. 280; Coulombe v. Eastman. 77 N. H. 368, 92 Atl. 168), and that the doing of an act to the performance of which a penalty is attached by statute is a violation of the statute (Williams v. Tappan, 23 N. H. 385, 391; Roby v. West, 4 N. II. 285, 287, 17 Am. Dec. 423; Bartlett v. Miner, Carth. 251, 1 Kent Com. *467).

It must also be conceded that Moffie v. Slawsby, 77 N. II. 555, 94 Atl. 193, is an authority which supports the defendants' present contention. Motile v. Slawsby was placed upon the ground announced in Bartlett v. Mansfield, 76 N. H. 582, 85 Atl. 756, that, "the private action for a penalty was abolished by chapter 31, Laws 1899." The statement was sound upon the facts in Bartlett v. Mansfield but in the use made of it in Moffie v. Slawsby there was no discussion of the question whether the application of the repealing statute was affected by the fact that the right of recovery was, by the statute inflicting the penalty (P. S. c. 203, § 2), limited "to the person aggrieved who will sue therefor." The section inflicting the penalty is not recited in the opinion, and the possible distinction apparently escaped notice. In all other cases where the statute has been construed to effect a repeal of private right to a penalty, the right has been given to any prosecutor or complainant or person who should sue therefor. Hibbard v. Fertilizer Co., 70 N. H. 156, 46 Atl. 683; State v. McConnell, 70 N. H. 158, 159, 46 Atl. 458; Noyes v. Edgerly, 71 N. H. 500, 503, 53 Atl. 311. The statute now involved (P. S. c. 244, § 1) confines the right to recover the penalty to "the person injured." The distinction is the same as that presented, but not discussed, in Moffie v. Slawsby, and is therefore fairly open for consideration. The law of 1899, after providing that no complainant or prosecutor, with certain exceptions not now material, should be entitled to any part of a fine or forfeiture imposed or collected under the liquor statute (P. S., c. 112) continues:

"And all other statutory provisions, whereby the complainant or prosecutor is entitled to the whole or any part of the penalty imposed for the violation of any...