#### The Inhabitants of Conway *versus*The Inhabitants of Deerfield.

If one appears by record and possession to be the lawful owner of an estate of the yearly income of three pounds, taking the profits thereof three years successively, he thereby gains a settlement; although his title may be defeasible. If one possessed of a sufficient estate to give him a settlement, mortgage the same to his surety for the purchase money, to indemnify him against the effects of his suretiship, he will gain no settlement by the possession of such estate.

In an action for the support of a pauper, a charge for the expense and trouble of the overseers in providing for the abode and support of the pauper cannot be recovered.

This was an action of *assumpsit,*to recover the amount of certain expenses incurred by the plaintiffs for the relief and support of *Chester Smith*and his family, who, as the plaintiffs allege, have their legal settlement in *Deerfield.*

At the trial, which was had on the general issue, before *Jackson,*J., at the last April term in this county, it was admitted that the said *Smith*was twenty-one years of age in the year 1800, was a citizen of the *United States,*and was taxed in *Deerfield*for certain real estate, occupied and claimed by him for five years successively, *viz.,*from 1800 to 1804 inclusive; which estate was worth two hundred and fifty dollars, and the annual income of which was from twelve to fifteen dollars.

* It appeared in evidence that this estate had been [ * 328 ] formerly owned by one *Paul Hawkes,*who had conveyed it, by a deed in the common form, to one *Faxon*in fee. *Faxon*entered immediately, and died seised of said premises, not having registered his deed. After his death, one *Ebenezer Eames*agreed to purchase the same of the administrator and one of the children and heirs of said *Faxon,*and thereupon the said deed was delivered by them to the said *Hawkes,*and cancelled ; and *Hawkes*gave a new deed for the conveyance of the same premises to said *Eames*in fee, who paid to the said administrator and heir the price agreed on, and thereupon entered on said premises, and continued seised thereof until his sale hereafter mentioned. The said *Faxon*left other children and heirs, who do not appear to have taken any part in the said agreement with *Eames.*

In the year 1799 or 1800, the said *Eames*agreed to sell the same premises to the said *Chester Smith,*and the last-mentioned deed not having been registered, it was delivered to said *Hawkes,*and cancelled ; and a new deed for the conveyance thereof to said *Smith*in fee was made by said *Hawkes.*The whole consideration foi this conveyance was paid to said *Eames*by said *Smith,*who *300thereupon entered on the premises, and continued seised thereof until 1805.

The defendants contended that, upon these facts, the legal settle ment of the said paupers was not in *Deerfield;*and if it was so, they had acquired another settlement in *Conway.*

They proved that, on the 8th of April, 1805, one *Boyden*sold and conveyed to the said *Chester Smith*in fee, a piece of land in *Conway,*for the consideration of four hundred and fifty dollars, the payment whereof was secured by notes signed by said *Smith,*and by one *Eames*as his surety. *Smith, on*the 15th of the same April, gave a mortgage deed of the same land to said *Eames,*to indemnify him as such surety. *Smith*immediately entered on the land, and lived there until the 19th of May, 1809. The annual income thereof was from sixteen to eighteen dollars. [*329 ] On the day * last mentioned, all the said notes being due, and the said *Smith*having paid all the interest to that time, and about ejghty dollars towards the principal, it was agreed, "between him and the said *Boyden,*that the said *Boyden’s*deed to him, which had not been registered, should be cancelled, which was done, and a new deed was made by *Boyden*to *Smith,*conveying in fee about three acres, parcel of the same premises, of the value of two hundred and fifty dollars, and the annual income of which was about twelve dollars. This piece included the dwelling-house on the said premises; and *Smith*continued to live therein until the 13th of March, 1812, when he died.

The said *Eames*was surety for *Smith*on his notes given to *Boy-den*on this second purchase. He never paid any of the notes, on which he was surety as aforesaid, nor was in any way damnified by reason of having signed them. In January, 1812, *Smith*being satisfied, as he said, that he never should be able to pay *Boyden*for said second purchase, delivered him that deed to be cancelled, it never having been registered.

It appeared that the said *Smith*had been taxed in *Conway*for the years 1805—1808, for upwards of. twenty dollars’ income, and that he was never afterwards taxed in any place. It was suggested that his tax might have been omitted, in 1809, with design; and the plaintiffs produced evidence to prove that the assessors had, before 1809, abated him a part of his taxes on account of his poverty, and omitted him that year on that account, from the representation of his neighbors that he was unable to support his family, and to pay any tax; and that they then supposed that he had his legal settlement in *Conway,*and had no motive or inducement to omit taxing him, except the belief of his inability to *301pay, and also to prove that he was poor, and unable to support his family, and to pay taxes.

The notice given to the defendants of the said *Smith’s*being relieved by the plaintiffs was in writing, signed by the overseers of the poor in Conway, and delivered by one of them, on the 10th of April, 1812, to *Asahel Wright,*Jun., *one of [ * 330 ] the overseers of *Deerfield,*whose name was inserted by the person who delivered it in a blank left for that purpose. Two letters were also produced from the overseers of the poor in *Deer-field*to the overseers of the poor in *Comvay,*dated respectively on the 27th of April, and 30th of July, 1812, in which they express their conviction that the paupers had no legal settlement in *Deer-field,*and refuse any assistance towards their support.

The judge instructed the jury that the said conveyance by *Hawhes*to *Smith,*and his entry on said granted premises, and occupation thereof, as above mentioned, were sufficient to give him a settlement in *Deerfield,*if the jury believed the facts testified in that behalf, and herein before stated.

As to the land conveyed by *Boy den*to *Smith*in *Conway,*he instructed the jury that the mortgage thereof made by *Smith*to *Dames*was an encumbrance thereon, which must be considered as reducing the annual income below ten dollars, if they believed the facts testified on that point, and herein before stated.

As to the omission to tax *Smith*in 1809, all the evidence was submitted to the jury, with a direction that, if they believed that the said *Smith*was at that time poor and unable to pay taxes, and that the assessors omitted to tax him on that account, and not from any corrupt or improper motive, they should not find that he gained a settlement in *Conway,*by being rated and assessed five years, as provided by the fifth clause of the statute of 1793, c. 34. *(a)*

As to the notice, the judge instructed the jury that, if they were satisfied that the said two letters, or either of them, from the overseers of *Deerfield*to the overseers of *Conway,*were in answer to the said communication addressed and delivered to *Wright,*they should find that legal notice had been given by the plaintiffs to the defendants.

There was also some question respecting some items of expense or charge of the plaintiffs, on which the evidence was left to the jury. One of these items was for the expense and trouble *302of the overseers of *Conway,*in providing for the [ *331 ] * abode and support of the paupers; as to which the jury were instructed that it was in its nature a legal charge; and that, if they found a verdict for the plaintiffs, they should allow on this charge what they should think a reasonable sum, according to the evidence relating thereto.

The jury returned their verdict for the plaintiffs; and the defendants moved for a new trial, on account of the said directions of the judge.

*Bliss,*for the defendants,

contended that *Smith’s*estate in the lands in *Deerfield,*being holden by ■ an imperfect and defeasible title, no legal settlement could be derived from his possession of it.

The only objection to the acquisition of a settlement in *Conway*arises from *Smith’s*having mortgaged the land to *Fames,*to indemnify him for his suretiship. But this was very different from a mortgage to a creditor to secure a sum of money actually owing, and its accruing interest, which was the fact in the case of *Croton*vs. *Boxhorough.*(1) It was a mere contingency, whether the event would ever take place, against which the mortgage was intended to secure the mortgagee. The mortgagee had no title to the possession of the land, until he wás damnified. But if this point be ruled against us, yet, the mortgage having been given up and cancelled, *Smith’s*seisin is to be considered as free of encumbrance from the first conveyance to him. (2)

The notice in this case was insufficient. It was addressed to one only of the overseers, and even this was addressed, not by the overseers, but by their agent or messenger. This is different from *Dalton*vs. *Hinsdale,*(3) where the notice was addressed to all the overseers, though delivered to one.

*Ashmun*and *Mills*for the plaintiffs.

(a)

*.) Inhab. Reading*vs. *Inhab.*Tewksbury, *2 Pick.*535. — *Inhab Wrentnam*vs Attleborough, 5 *Mass. Rep.*430. — *Inhab. Billerica*vs. Chelmsford, 10 *Mass. Rep.*394 — *Inhab. Westbrook*vs. *Inhab.*Gorham, 15 *Mass. Rep.*160. — *Inhab. Templeton*vs *Inhab.*Sterling, 15 *Mass. Rep.*253.

(1)

6 *Mass. Rep.*50.

(2)

*Prec. in Ch.*235.—4 *Cruise,*370. — 2 *H. Black.*259.

(3)

6 *Mass. Rep.*501.

Parker, C. J.,

delivered the opinion of the Court.

Upon the facts in this case two questions arise: —

The first is, whether *Chester Smith,*the pauper, had his settlement in *Deerfield*in consequence of his residence in that town, being taxed there for five years successively, [ * 332 ] * and owning and occupying a freehold there, which yielded an income of more than ten dollars per annum.

The only ground upon which it is denied that, by these circumstances, he acquired a settlement, agreeably to the statute, is, that his title to the land which he occupied was not perfect; because *Hawlces,*his grantor, having before granted the premises to *Faxon**303who entered, and died seised, a right descended to his heirs, which could not be divested by the cancelling of that deed, and making a new one to *Smith,*with the consent of the administrator of *Faxon*and one of his children; there being other children surviving, to whom the right of *Faxon*descended.

But we are of opinion that, notwithstanding this objection to the title of *Smith,*he is to be considered the owner of the estate, within the meaning of the fourth article of the statute of 1793, c. 34, *2,*

for ascertaining legal settlements, &c. The words of that article are, “ Any person of twenty-one years of age, being a citizen of this or any of the *United States,*having an estate *of*inheritance or freehold in the town or district where he dwells and has his home, of the clear yearly income of three pounds, and taking the rents and profits thereof three years successively, whether he lives thereupon or not, shall thereby gain a settlement therein.”

*Smith*occupied an estate of that value, and more, in *Deerfield,*and received the annual profits thereof for more than three successive years. He held the estate by force of a deed from *Hawkes,*the former owner, and was actually and lawfully seised of it, as an estate of inheritance. Possibly the heirs of *Faxon*may hereafter question the title; but it is not known that they ever will. They may be content with the bargain, and prefer the avails of the estate in the hands of the administrator, *(a)*

If a man, holding undisturbed possession of real estate under a deed, is not to be considered the owner, for the purpose of gaining a settlement, it would be necessary, in every such case, to go into a trial of the title; when it might often * happen [ * 333 ] that some latent defect would be discovered, and yet that no one would appear, to question the right of the occupier. ' It is sufficient that the pauper should appear, by record and by possession, to be the lawful owner; and although his title may be defeasible, it is good until defeated.

The remaining question is, whether the pauper subsequently gained a settlement in *Conway.*

In 1805, he removed to *Conway,*having land there in fee yielding more than ten dollars annual income, and he occupied the same, receiving the annual profits. This would have given him a settlement there upon the same principle that he had before obtained one in *Deerfield,*but for the mortgage which he gave to *Eames,*his surety for the payment of the consideration.

It has been settled that land so holden, but which is mort*304gaged for a sum, the interest of which, deducted from the profits, will reduce them below ten dollars, does not give a settlement. But it is said that this case is distinguishable, because the mortgage was not made to the grantor to secure the payment of the consideration, or to any person to secure the payment of money directly, but was given to *Eames*merely to indemnify him against the effects of his suretiship.

We see no difference. The land is equally charged with the payment of its price, whether the mortgage is made directly to the grantor, or to a third person, whom the purchaser has obtained as his surety. The land and its profits are, in fact, pledged for the payment of the debt. As to the surrender of the mortgage, this might have removed the difficulty; but there was not three years’ receipt of the profits afterwards; and we cannot say that, because the mortgage was surrendered, the land was therefore never encumbered.

Judgment must be rendered on the verdict; but as the sum charged by the overseers of *Conway*for their trouble is not a legal charge upon the defendants, so much must be deducted from the sum found by the verdict, *(a)*

(a)

*Rex*vs. *Calow. 3 M. & S. 23.—Aishbrittle*vs. *Wiley, 1 Str. 608.—Rex*vs. *Sutton, Burr Set. Cas.*631. *Rex*vs. *Butteston,*6 *D. & E.*554.

(a)

*Inhab. Groton*vs. *Inhab.*Boxborough, 6 *Mass. Rep.*50. — *Inhab. Granby*vs *Inhab.*Amherst, 7 *Mass. Rep.*3. — *Inhab. Western*vs. Leicester, 3 *Pick.*190.— Inhab. *Middleborough*vs. Clark, *2*Pick. 28. — *Inhab. Mansfield*vs. Pembroke, 5 *Pick.*449.