Opinion
No. 3970.
Decided July 2, 1951.
A grantor cannot convey his interest in real estate to another merely by substituting the latter's name for that of the grantee named in the deed. Certain evidence warranted the finding that the acts of occupation of real estate for over twenty years by and on behalf of the plaintiff's predecessor in title were sufficient to establish his title by adverse possession. The plaintiff in such case was entitled to tack the ownership and possession of his predecessors in title to sustain his title by adverse possession. A bill in equity may be maintained to establish title by adverse possession although the plaintiff's record title is incomplete. The invalidity of the plaintiff's deed is not conclusive of his right to acquire title by adverse possession.
BILL IN EQUITY, to quiet title to certain real estate in Grafton, a portion of which is claimed to be owned by the defendant. Trial by the Court who decreed title in the plaintiff by adverse possession and awarded damages in the amount of $25. The defendant's exceptions to the findings, rulings and decree were reserved and transferred by Wheeler, J.
The findings and the rulings of the Court are as follows:
"The petitioner claims that he is the owner in `fee simple and/or by adverse possession' of certain real estate more particularly described in a deed from Everett C. Bates dated June 27, 1946, and recorded in Grafton Records, Book 740, Page 415. In general he claims all of the land marked `Bullock Heirs' being all the land lying between the railroad and Tewksbury Pond as shown on map marked `Defendant's Exhibit B.' The Defendant claims to own a portion of the land in question by deed of Earl J. Berry dated April 13, 1948, recorded in Grafton Records, Book 777, Page 244. In general the defendant claims a certain portion of the Northwesterly part of the Bullock Heirs' property or all the land lying in a general Northwesterly direction of the extension of a line to Tewksbury Pond of a certain existing fence on the southerly boundary of the land of one Berry. The land in general is not easily accessible and in the past has not been of great value. It is a secluded spot on the shores of Tewksbury Pond and because of the fact has acquired some value to the present claimants. The plaintiff paid Four hundred ninety-five dollars ($495) for what he claims to be the entire tract involved, and the defendant paid One hundred dollars ($100) for that portion claimed by him. Both parties have built small, attractive cottages on the property and the defendant, prior to building, entered upon the land and cut certain trees and brush to make a clearing for his cottage. The plaintiff admits that the damages caused by such entry do not exceed Fifty Dollars ($50).
"It is disputed that the existing fence which forms the southerly boundary of the Berry property has any bearing on the defendant's title and there was substantial evidence that there formerly existed another fence northerly of the present one which if extended in a straight line to Tewksbury Pond, would run northerly of the land in question.
"There was substantial evidence from which it could be found that Frank Sargent, one of the plaintiff's predecessors in title, openly claimed ownership in the entire tract in dispute from about 1893 until his death in 1930 and that subsequent grantees from Frank Sargent have continuously asserted ownership over this tract.
"The Court finds, so far as it is a question of fact, and rules so far as it is a question of law, that the plaintiff and his predecessors in title have had a continued, open, visible and adverse occupation of the premises in question for a period of more than twenty (20) years."
Robert A. Jones, for the plaintiff.
Cotton, Tesreau Stebbins (Mr. Stebbins orally), for the defendant.
The plaintiff acquired his title in 1946 from one Bates, who acquired his title in 1933 from one Sargent, who in turn acquired title from one Webster in 1897. While this chain of title is complete as it appears from the registry of deeds, it was established at the trial without dispute that the 1933 sale and conveyance from Sargent was actually made to one Rice who occupied the property part of one summer. There was no deed from Rice to Bates but in the 1933 conveyance Rice's name as grantee was stricken out in some places and erased in others and Bates' name was substituted in each such instance. Rice could not convey his interest by the substitution of Bates as grantee (R.L., c. 259, ss. 1, 15) and consequently the plaintiff's record title was defective. This explains why the decree to quiet title in favor of the plaintiff was not predicated on the basis of his record title. The plaintiff can prevail only if the evidence justifies his claim of title based on adverse possession.
For more than thirty years prior to 1931, Sargent openly claimed and exercised ownership over the property in question by frequent inspections, removing fish screens from the property, granting trapping permits on the land and during this period no other party made any claim of ownership. In 1930, on his behalf a cottage erected on the land by one Hunt was ordered to be removed. During this period the character of the land was such that it was not easily accessible, was of slight value and was used mainly for flowage purposes, hunting and fishing. Considering the character of the land and its adaptability, the acts of occupation by and on behalf of Sargent were sufficient to establish title by adverse possession during that period. Pease v. Whitney, 78 N.H. 201. After Sargent's death no claim was made to the property and his estate continued to claim ownership until the property was sold to Rice and occupied by him for one summer and thereafter occupied by Bates until sold to the plaintiff. The defendant made no claim to the property until 1948 and there is evidence that he was advised the property was owned by the plaintiff at the time he received his deed. The plaintiff is entitled to tack the ownership and possession made by Rice and Bates in order to sustain his title by adverse possession. Alukonis v. Kashulines, 96 N.H. 107. The invalidity of the plaintiff's deed is not conclusive on the issue of his acquiring title by adverse possession. Barker v. Company, 78 N.H. 160. The fact that the Bates deed was defective did not prevent its recordation from acting as constructive notice that he was in possession of the premises and claiming adversely. Forest v. Jackson, 56 N.H. 357, 362. The plaintiff could maintain a bill in equity to establish title by adverse possession even though his record title was incomplete. Alukonis v. Kashulines, supra; Flick, Abstract and Title Practice (1951) s. 660.
Exceptions overruled.
All concurred.