The finding of the court that the evidence tended to sustain the plaintiff's theory of title to the land in question is supported by an examination of the evidence. If the assessors' books showing how the tax was assessed against the defendant are excluded as incompetent and prejudicial, what remains would support a verdict for the plaintiff. If believed, it would prove that the plaintiff's ancestor in title acquired a deed of a farm in the '40's, known as the Offutt farm, which included the locus; that the subsequent grantees had been in possession of it and cultivated it; and that after the deed to the plaintiff the defendant paid rent to the plaintiff for the occupation of the locus. The motion for a nonsuit was properly denied.
If it could not be legally found from the evidence of the assessments that the defendant was not the owner of the land, this error was cured when, at the request of the defendant, the court charged that the assessment of the property as a building on "Williams' land" was "no evidence whatever that the land was Williams' and not Duggan's." Asking for and obtaining that instruction amounted to a waiver of his exception to the evidence. So far as its competency to prove title was concerned, it was expressly excluded from the consideration of the jury, and the presumption is that they did not consider it as evidence of title. The effect of the successful request was the same upon the motion for a nonsuit as evidence afterward introduced by a defendant which cures the alleged defect.
But it is said the evidence was prejudicial because it impressed upon the minds of the jury the fact that the assessors had for some years determined that the defendant owned merely the building. But in view of the positive instruction it is not apparent how the evidence was prejudicial. Its only relevancy, according to the defendant, was to show that "this was Williams' land." The jury were told, in effect, to give it no weight whatever upon the only point in the case it was calculated to have a bearing upon. If the jury had been told that the evidence was stricken out and that they could not only consider it for any purpose, it is not plain how its effect would be more effectually removed than it was by the instruction which was given. Whether the jury in fact considered it in reaching a verdict is a question for the determination of the superior court. Lee v. Dow, 73 N.H. 101. As the burden is on the excepting party to point out the error committed, *Page 36 the defendant fails. Kendall v. Flanders, 72 N.H. 11, 12; Staniels v. Whitcher, 73 N.H. 152.
The defendant's second request for instructions was properly denied. If the defendant did not pay rent to the plaintiff on the lot in question, but on another lot, and always understood the transaction in that way, it does not follow that he was entitled to a verdict. While he may not have recognized the plaintiff's title, or waived any rights he supposed he had to the land, he could not succeed against the true owner without proving to the satisfaction of the jury that he had been in the open, adverse, and exclusive possession of the premises for twenty years at least. The requested instruction was too broad and authorized a verdict for the defendant upon the mere finding that he had not recognized the plaintiff's title. That would have been manifest error.
Exceptions overruled: judgment on the verdict.
PEASLEE, J., did not sit: the others concurred.