Samuel W. Emery, for the plaintiff.
Calvin Page, for Knox and Stones.
William H. Sawyer, for Stone.
Fink Marvin, for the defendant.
Sargent, Hollis Niles, for Emery. Upon the facts stated in the case, the only legal
question to be determined is whether the defendant has a valid title to an undivided
half of certain premises in Rye, consisting of a lot of land and dwelling-house
thereon, which he can assert against the plaintiff. There are two conclusive reasons
why the defendant cannot maintain his title. The first reason is that the plaintiff
has a perfect title by adverse possession; and, second, the defendant, if he has
any title, is estopped to make any claim of an interest in the premises as against
the plaintiff.
I. Our contention is that the deed from James M. Parsons, one of the tenants in
remainder, to William Berry, which was duly recorded and purported to convey the
entire premises, coupled with the entry of William Berry into the possession of
said premises under said deed claiming a title to said entire tract, amounted to
an actual ouster of Isaac D. Parsons, the other tenant in remainder, and that the
plaintiff' and his grantors, including William Berry, having since that time occupied
said premises openly, adversely, notoriously, and exclusively, they have thereby
gained an absolute title to the premises as against any paper title which the defendant
may have obtained from the heirs of Isaac D. Parsons.
A grantee by conveyance from one of two among several joint owners of land, after
possession taken, holds adversely to the other joint owner. If one cotenant executes
and delivers a deed of the entire estate, and the grantee causes the deed to be
recorded and enters into possession, claiming title to the entirety, and openly
exercises acts of ownership, this is a disseizin of the cotenants, and they cannot
subsequently convey their portion of the estate by an effectual deed to a third
person. It has also been held, where one of several tenants in common conveys the
entire premises held in common, and the grantee enters into possession under the
conveyance claiming title to the whole premises, that such possession is adverse
to the cotenants of the grantor. Busw. Lim. Adv. Poss., ss. 296, 300. Where one
cotenant assumes to convey the entire land and does convey by metes and bounds,
his deed will give color of title; and if possession is taken thereunder, the purchaser
claiming title to the whole premises, it will amount to an actual ouster and disseizin
of the other cotenants, and such possession is adverse, and if continued for a sufficient
length of time, will bar the right of the other cotenants to recover. Forest v.
Jackson, 56 N.H. 357 . Proof of a verbal sale of the interest of one of the heirs
to an estate
to another of the heirs, followed by adverse possession for twenty years by such
other heir, has been held to create a sufficient title in the latter. Hyne v. Osborn, 62
Mich. 235 . See, also, Watson v. Jeffrey, 39 N.J. Eq. 62 ; Lapeyre v. Paul, 47
Mo. 586 ; Sydnor v. Palmer, 29 Wis. 226 .
Our claim is, that more than twenty years having elapsed since the plaintiff's
predecessors in title went into possession of the premises, under a deed purporting
to convey a clear title, whatever rights the defendant or his grantors may have
had are now forever barred. The decision of this court in Walker Walker, 63 N.H.
321 , is conclusive upon this point, whatever construction is put upon the transaction
between Joseph and James M. Parsons and William Berry. That decision, the result
of the most profound research on the part of the late chief justice of this court,
and embodying and declaring in the clearest terms the salutary principle that for
every legal wrong there must be a legal remedy, carries so great weight, not only
because it is a statement of the doctrine of this same court, expounded by the highest
authority, but also because of its intrinsic merit, that it is hardly to be believed
that the court will make such haste to undo the work of Judge Doe, or will announce
at this, late day the principle that there are legal wrongs for which the supreme
court of New Hampshire will afford no legal remedy.
This case, however, does not depend in any degree upon the decision in Walker v.
Walker, although we think that case is conclusive against the defendant's claim,
so far as it rests upon the theory that Berry, by the conveyance to him, became
purchaser of Joseph's life tenancy, and occupied the premises in that capacity
until the death of Joseph. We think that this theory is incorrect, and that Berry
and his successors never occupied the premises in the capacity of tenants for the
life of Joseph, but that occupied as tenants in common, claiming the whole. Berry,
by his purchase from Joseph and James M., became a tenant in common in fee, as well
as the holder of the life estate, and the legal effect of this situation, manifestly
according with the intention of the parties, is that the life estate was from the
moment of the conveyance merged in the greater estate and extinguished. To express
it in another way, the effect being the same, Joseph did not intend to grant or
transfer, but rather surrender, the life estate. The life tenant, by joining with
one. of the tenants in common in remainder in the conveyance by warranty deed, intended
to surrender and extinguish the life estate, not to provide for its continuance
in Berry; and Berry clearly did not intend to become the purchaser and tenant of
the life estate, nor yet to purchase a fee from the life tenant. The natural construction
of the transaction, as viewed by him, must be that he purchased the fee from James
M., who he believed
had authority to convey it, and, in order to get immediate possession, bought out
the life tenant. His taking a conveyance from James M. shows conclusively that he
did not consider Joseph as qualified to convey the fee, and that his occupation,
claiming a fee, was supposed to be under James M. This is very different from the
common case of a conveyance in fee by a life tenant alone, where the grantee's
only claim must be under the life tenant. The whole transaction shows that the intention
of the parties was to effect an extinguishment, not a transfer, of the life estate.
That being so, the life estate was extinguished, Berry went into possession as a
tenant in common, claiming the whole, under a deed purporting to convey the whole,
and a right of entry at once accrued to his ousted tenant in common. That right
of entry is now barred by the lapse of more than twenty years, during which the
tenant in common has remained so ousted, and Berry and his successors have been
in open and notorious adverse possession. The circumstances lead necessarily to
the conclusion that the life interest was extinguished from the moment of the conveyance
to Berry, as the result of a surrender by the life tenant, or of a merger, following,
by operation of law, upon the conveyance, by whatever name that conveyance is called.
"A surrender is the yielding up of an estate for life or years to him who has an
immediate estate in reversion or remainder, wherein the estate for life or years
may drown(merge) by mutual agreement." Co. Lit. 337 b. "Merger bears a very near
resemblance, in circumstances and effect, to a surrender; but the analogy does not
hold in all cases, though there is not any case in which merger will take place,
unless the right of making and accepting a surrender resided in the parties between
whom the merger takes place. To a surrender, it is requisite that the tenant of
the particular estate should relinquish his estate in favor of the tenant of the
next vested estate, in remainder or reversion. But merger is confined to the cases
in which the tenant of the estate in reversion or remainder (grants that estate
to the tenant, of the particular estate, or in which the particular tenant grants
his estate to him in reversion or remainder. Surrender is the act of the party,
and merger is the act of the law." 4 Kent *100.
A surrender may be made to one of two joint tenants or tenants in common, in remainder
or reversion, and enures to both, so that after such surrender the question whether
the possession of him to whom the surrender is made is adverse to his cotenant depends
upon the same considerations that govern in determining the same question when it
arises between cotenants generally. "A surrender to one joint tenant shall enure
to them all. But if tenant for life or years grant his estate to one of the joint
tenants in reversion, it seems this shall not enure as a
surrender to them all, but as a grant to him alone." Shep. Touch. 303. "And so it
is if such a lessee for life should surrender to one of them, it shall enure to
them both, for that they have a joint reversion. But if the lessee grant his estate
to one of them, no part of it shall enure to his companion, because for the moiety
belonging to his companion it is in esse in him to whom the grant is made, the reversion
to the other in fee." Co. Lit. 192 a and b. It will be noted that the distinction
is here made between a surrender and a grant. Whether any particular conveyance
is a surrender or a grant, is a question of fact depending upon the intention of
the parties, and not upon the form of words used. "A surrender, sursumredditio,
or rendering up, is of a nature directly opposite to a release; for as that operates
by the greater estate descending upon the less, a surrender is the falling of a
less estate into a greater. It is defined, a yielding up of an estate for life or
years to him that hath the immediate reversion or remainder, wherein the particular
estate may merge or drown, by mutual agreement between them. It is usually done
by these words, `surrender, grant, and yield up,' though no special form of words
is essential." 1 Broom H. Com. *520.
Farmer v. Rogers, 2 Wils. 26, is a good illustration of this doctrine. The plaintiff
mortgaged the premises to the defendant for 500 years, with a proviso that the term
should cease upon payment of £ 500 upon a certain day. After that day the plaintiff
paid the defendant the sum named, and the defendant wrote on the mortgages, "I do
release the said A. B. and discharge the within mortgaged premises from the term
of 500 years." It was argued by the plaintiff that "the word surrender is not necessary
to make a surrender, but any other words tantamount will be sufficient; as if lessee
for life say to the lessor that he grants that he shall enter into the land, and
that he is willing that he shall have the land." It was held by the court "that
the words `release and discharge the term of 500 years,' are much stronger than
words which, in many cases, have amounted to a surrender, ut res magis valeat quam
pereat."
It will thus be seen that no particular form of words need be used, that the word
surrender is entirely unnecessary, and that the word grant may be used without taking
from the transaction its character as a surrender, and making it a grant. The object
to be attained is, "ut res valeat," — that is, that the transaction shall
take effect as intended. Unless, therefore, the court is clearly of the opinion
that Berry, in taking a, deed from the life tenant and the only resident and known
remainder-man, intended to maintain the character of a life tenant during the life
of Joseph, and not to enter upon his possession as tenant in fee until after Joseph's
death, it must be held, in accordance with the intention of the parties, that there
was a surrender of the
premises, enuring to the benefit of both remainder-men, and giving an immediate
right of entry to the ousted cotenant, which right has now been lost by the failure
to take advantage of it for a period of more than twenty years.
But even if the conveyance were deemed to be a grant rather than a surrender, there
would still be a merger by operation of law. A merger will take place when an inferior
and a superior estate coincide in one person, if he be in such a position that,
as holder of the superior estate, the inferior might be surrendered to him. The
primary test of a merger is found in the question whether the person in whom the
two estates coincide might, if he were tenant of the superior estate alone, accept
a surrender of the inferior. There can be no doubt that a joint tenant in remainder
is capable of receiving a surrender from the tenant for life. Accordingly, it follows
that when the two estates coincide in him, however they may have been acquired,
there is a merger, and the inferior estate is at once annihilated. At law, this
follows as a necessary conclusion; at equity, the result is the same, unless it
is clear that the parties intended that no merger should take place, or unless substantial
injustice would be done by giving to the transaction its usual effect.
"At law, when a greater and lesser, or a legal and equitable estate coincide in
the same person, the lesser or the equitable estate is immediately merged and annihilated.
But this rule is not inflexible in equity; whether or not a merger takes place depending
upon the intention of the parties and a variety of other circumstances. Notwithstanding
the technical rule of law, equity will prevent or permit a merger as will best subserve
the purposes of justice and the actual and just intention of the parties; and in
the absence of an expression of intention, if the interest of the person in whom
the several estates have united, as shown from all the circumstances, would be best
subserved by keeping them separate, the interest will ordinarily be implied. But
where it is a matter of indifference to the party, the technical rule applies and
the merger will take place. So an agreement that there shall be no merger will be
respected in equity when consonant with the equitable rights of all concerned. The
intent of the parties, however, in order to control the question of merger, must
have been an intent existing at the time the two estates came together; if no such
intent then existed, a merger cannot be prevented by an intention afterwards formed
and expressed, or by subsequent circumstances from which such intention might have
been inferred, had they existed the time of the union. A merger will be prevented
by equity only, however, for the purpose of promoting justice; it will not prevent
a merger where such prevention would result in carrying a fraud or other conscientious
wrong into effect." 15 Am. Eng. Enc. Law 314, and cases cited.
There was, then, a merger by operation of law, effective both at law and in equity.
It is effective at law, because there was a union of the life estate and the remainder
in one person, whose estate in remainder was of such a character as to permit of
receiving a surrender from the life tenant had he been in possession of the superior
estate alone. It is effective in equity, because the referee has not found that
there was at the time of the conveyance any intention to prevent a merger; because
there is nothing in the case from which the court can find as matter of law that
the referee ought to have found such an intention; because every thing in the case
goes to prove conclusively that there was no such intention; and because it is not
necessary, for the promotion of justice, that the merger should be prevented, but,
on the contrary, every consideration of justice and equity requires that the merger
should be upheld, and the defendant's fraudulent intentions frustrated.
II. The defendant by his acts and conduct is estopped to set up any title to the
premises as against the plaintiff. Having full knowledge of the occupation of the
plaintiff's grantors from and before the time of the purchase by William Berry,
and full knowledge that Berry and his grantees relied upon their title supposing
it to cover the entire premises; knowing that the Knoxes, who owned the premises
from September, 1871, to December, 1872, were cutting up the "sea field" and selling
house lots therefrom; that Stone, who was the owner from 1873 to 1880, erected buildings
and made other improvements thereon at a large expense; and that Emery, who was
owner from 1880 to 1891, also made valuable improvements at a large expense, he
deliberately and willfully concealed the fact that he or any one else had even a
pretended claim to any portion of the premises, and allowed these parties to go
on and spend their money to purchase and increase the value of the same without
giving them any information of these material facts within his knowledge, or warn
them in any way against making a sale or purchase. It appears that although the
defendant acquired his title from the sons of Isaac D. Parsons in 1876 and 1877,
he never claimed to any one until after 1891 that he or any one else had any interest
in the premises; and during this time George H. Emery purchased from W. G. Stone,
and conveyed to the plaintiff. It is manifest that the defendant knew all about
these conveyances, and from his proximity to and acquaintance with the land question
he must have known that these conveyances were about to be made before they were
actually made; yet he quietly stood by and concealed from Emery and the plaintiff
the facts which would have protected them and prevented the expenditure of their
money if such facts had come to their knowledge.
Upon this branch of the case the law seems to be perfectly
clear, and there are numerous authorities directly in point in principle, although
there is scarcely one of them where the facts show such a malevolent purpose on
the part of the person against whom the estoppel was claimed as appears in this
case. If party is present and sees another sell and convey property, whether real
or personal, to which he may assert a title, without disclosing his title, or objecting
to the sale or conveyance, and the sale is made with a lull knowledge on his part,
he will be estopped by his silence from thereafter setting up his title against
the purchaser. And this principle may be carried out at common law without resort
to equity. Corbett v. Norcross, 35 N.H. 99 . "A representation which estops the
party making it from denying its truth, must not only have misled the party to whom
it was made, but have been intended so to mislead him, or at least there must have
been such culpable negligence or carelessness as may be regarded as amounting to
an intention to mislead. The same is true where a party by his silence — which
is one mode of making a representation — has misled another as to the matter
not communicated. . . . If one having the title to estate, and knowing it, stand
by and see another, who, ignorant of it, purchased the estate, and suffer him to
improve it under the belief that his title is valid, such an one is bound by the
sale, and cannot invoke the aid of a court of justice to dispute it. `Standing by'
may not import actual presence, but implies knowledge under such circumstances as
to render it the duty of the possessor to communicate it." Richardson v. Chickering, 41
N.H. 380 , 385 , 386 .
"To create an estoppel by silence, there must be not only the opportunity, but the
apparent duty, to speak. The party keeping silence must know that some one is relying
thereon, and is either acting or about to act as he would not if the truth were
known to him." Allen v. Shaw, 61 N.H. 95 , 97 . The whole gist of the doctrine
of equitable estoppel, based on silence, is summed up in the words last quoted.
There is an estoppel when one has kept silence, although he knew that by speaking
he could prevent some action on the part of another which that other would not take
if aware of that which the party keeping silence might announce. His reasons for
keeping silent are of no consequence. If he made a mistake as to his rights, and
believed that he could safely lie by and reap the benefits of another's expenditures,
he is the one who must suffer the consequences of that mistake. And if he consulted
an attorney and was wrongly advised, he must seek such redress as is open to clients
whose counsel make mistakes. He certainly cannot equitably demand that the plaintiff
should be made to suffer for his or his attorney's erroneous conceptions of the
extent to which the law would countenance his unconscionable deception.
The defendant's knowledge of the extensive improvements made on the property by
parties, who, as he knew, occupied the premises in the full belief that they had
a clear and complete title to them, made it incumbent upon him either to inform
them at once of his claim of ownership, or never thereafter to urge that claim.
The estoppel is complete, and is an effectual bar to the assertion by the defendant
of any rights in the property whatever. This alone is decisive of the case, so far
as this plaintiff is concerned.