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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


8th Circuit Court – Jaffrey District Division
No. 2012-443


                          LEIGH MAE FRIEDLINE & a.

                                        v.

                                  EUGENE ROE

                          Argued: October 16, 2013
                         Opinion Issued: May 16, 2014

      Donald H. Sienkiewicz, of Milford, by brief and orally, for the plaintiffs.

      Keefe & Keefe P.A., of Wilton (William Keefe on the brief and orally), for
the defendant.

      BASSETT, J. The defendant, Eugene Roe, appeals a decision of the 8th
Circuit Court – Jaffrey District Division (Runyon, J.) awarding the plaintiffs,
Leigh Mae Friedline and Zebadiah Kellogg-Roe, a writ of possession. We vacate
and remand.

      The following facts are drawn from the district division’s order and the
record, or are otherwise undisputed. In 1959, the defendant purchased
property in Greenville, New Hampshire. In 1971, the defendant conveyed the
property to Brookwood Ecology Center, Inc. (Brookwood), a New Hampshire
voluntary corporation. Brookwood reconveyed the house and barn on the
property to the defendant in 1999. In 2004, the defendant conveyed the house
and barn to his son, plaintiff Kellogg-Roe. In 2009, Kellogg-Roe transferred a
twenty percent interest in the buildings to plaintiff Friedline. That same year,
Kellogg-Roe gave Friedline a power of attorney to act as his agent.

      The defendant has lived on the property since he purchased it. In March
2012, Friedline served him with an eviction notice, ordering him to vacate the
premises within thirty days. Although the eviction notice stated that the
buildings were owned by both Kellogg-Roe and Friedline, only Friedline signed
the notice. When the defendant did not vacate the premises, the plaintiffs filed
a landlord and tenant writ.

        The defendant filed a brief statement and plea of title in response to the
writ, arguing, among other things, that the case should be dismissed because
both record owners of the premises did not sign the eviction notice. In his plea
of title, the defendant argued that a constructive trust should be imposed
because “[t]he 2004 conveyance from [the defendant] to [Kellogg-Roe] was
based on the agreement that [the defendant] could live in the house for the rest
of his life.” The defendant also challenged the plaintiffs’ title to the property by
arguing that Brookwood, “as a charitable trust[,] was without authority to give
the house and barn to [the defendant] in 1999 and therefore plaintiff[s] as . . .
assignee[s] without consideration, [do] not own title to the house.”

      Following a hearing, the district division awarded the plaintiffs a writ of
possession. It found that Friedline filed the eviction notice on behalf of both
owners because Kellogg-Roe had granted her a durable power of attorney.
Citing RSA 506:1, the court also concluded that any agreement entitling the
defendant to a life estate was unenforceable because the defendant did not
prove that the agreement had been reduced to writing. See RSA 506:1 (2010)
(“No action shall be maintained upon a contract for the sale of land unless the
agreement upon which it is brought, or some memorandum thereof, is in
writing and signed by the party to be charged, or by some person authorized by
him in writing.”). The court further found that the defendant’s deed from
Brookwood was not void because the 1999 transfer was for valuable
consideration. This appeal followed.

       On appeal, the defendant first argues that he properly asserted a plea of
title and, consequently, the district division erred by not transferring the case
to superior court. He further argues that the court exceeded its jurisdiction by
ruling on the issues raised in his plea of title. The plaintiffs counter that the
court did not err in declining to transfer the case to superior court because the
defendant presented no evidence to support the claims asserted in his plea of
title.

      The ultimate determination as to whether the district division had
jurisdiction in this case is a question of law, subject to de novo review.
Holloway Automotive Group v. Lucic, 163 N.H. 6, 12 (2011). In order to answer
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this question, we need to engage in statutory interpretation. See Bank of N.Y.
Mellon v. Cataldo, 161 N.H. 135, 137 (2010). We are the final arbiters of the
intent of the legislature as expressed in the words of the statute. Id. “When
the language of a statute is clear on its face, its meaning is not subject to
modification.” Id.

       The district division of the circuit court is a court of limited jurisdiction
with powers conferred upon it by statute. RSA 502-A:14 (2010) (identifying
jurisdiction of district court in civil cases); see RSA 490-F:3 (Supp. 2013)
(conferring upon circuit courts powers and duties of former district courts).
Although it has the power to entertain possessory actions under RSA chapter
540 (2007 & Supp. 2013), it does not have jurisdiction to resolve issues of title
or actions in equity. See Deutsche Bank Nat’l Trust Co. v. Kevlik, 161 N.H.
800, 803 (2011); Woodstock Soapstone Co. v. Carleton, 133 N.H. 809, 816
(1991).

       RSA 540:17 and :18 (2007) set forth the procedures district divisions are
to follow when a defendant raises an issue of title. See Bank of N.Y. Mellon,
161 N.H. at 137. RSA 540:17 states:

          If the defendant shall plead a plea which may bring in question
      the title to the demanded premises he shall forthwith recognize to
      the plaintiff, with sufficient sureties, in such sum as the court
      shall order, to enter his action in the superior court for the county
      at the next return day, and to prosecute his action in said court,
      and to pay all rent then due or which shall become due pending
      the action, and the damages and costs which may be awarded
      against him.

RSA 540:18 states:

         After the filing of such plea and the entry of such recognizance
      no further proceedings shall be had before the municipal court,
      but the action may be entered and prosecuted in the superior
      court in the same manner as if it were originally begun there.

See also RSA 502–A:34 (2010) (repealed 2011) (conferring on district courts
jurisdiction, powers, and duties formerly possessed by municipal courts); RSA
490-F:3.

       The filing of a plea of title in the district division does not immediately
halt the possessory proceedings. See Bank of N.Y. Mellon, 161 N.H. at 137
(referring to district court). Rather, we have explained that RSA 540:17
requires the defendant to promise to enter his action in the superior court for
the county and authorizes the district division to require that the defendant
post a monetary bond which may be unsecured or secured. Id. at 138. RSA
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540:18 provides that once such a promise is made by way of the entry of
recognizance, no further proceedings shall be had in the district division and
the action may be entered in the superior court. Id. Thus, when the plea of
title is raised in the district division and the defendant files such recognizance
as ordered by the court, the possessory action in the district division is stayed.
Id. at 137. If the defendant fails to enter his action in the superior court, then
the possessory proceedings in the district division may resume. See id. at 138.

       We have recognized that once a defendant raises a plea of title, the
district division does not bear the burden to transfer or otherwise enter the
action in superior court. See id. Rather, RSA 540:17 places the burden to
institute the action in the superior court on the defendant. Id. Moreover, the
district division does not have the authority to address the merits of a title
claim because “issues of title must be resolved in superior court.” Wells Fargo
Bank v. Schultz, 164 N.H. 608, 611 (2013); see also Deutsche Bank Nat’l Trust
Co., 161 N.H. at 804 (noting that defendants would not have been able to
pursue their challenge to plaintiff’s title in district court).

       Consequently, because the district division lacks jurisdiction to decide a
plea of title, we hold that, when a defendant raises such a claim, the district
division must provide the defendant with an opportunity to promise to enter
his action in the superior court and, if so ordered, to enter a recognizance. Cf.
Deutsche Bank Nat’l Trust Co., 161 N.H. at 802; Bank of N.Y. Mellon, 161 N.H.
at 138. If the defendant fails to initiate the action in the superior court or does
not enter the specified recognizance, then the district division may resume the
possessory proceedings. See Bank of N.Y. Mellon, 161 N.H. at 138.

       Here, the defendant challenged the plaintiff’s title to the property on two
grounds. He first argued that he had a life estate in the property because he
conveyed the property to Kellogg-Roe based upon an agreement that he could
live in the house for the rest of his life. The defendant next asserted, in
essence, that Brookwood – rather than the plaintiffs – was the owner of the
house and barn. Consequently, the defendant maintained that the plaintiffs
were not entitled to bring a possessory action because they did not hold valid
title.

        We need not decide whether both of the defendant’s claims raised a plea
of title because it is evident that the defendant’s first claim involved a challenge
to the title to the property. See Gibson v. LaClair, 135 N.H. 129, 131 (1991);
Blevens v. New England Tel. & Tel. Co., 116 N.H. 247, 247 (1976).
Nonetheless, the district division did not provide the defendant with the
opportunity to enter his action in superior court, nor did it address the issue of
recognizance. This was error.

     The defendant further argues that the district division erred by ruling on
the merits of his plea of title because doing so exceeded the court’s jurisdiction.
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We agree. Rather than providing the defendant with the opportunity to enter
his action in superior court, the district division held a hearing during which it
addressed, among other issues, the merits of his claim to a life estate in the
property. Because jurisdiction to resolve questions of title and matters of
equity lies with the superior court, see Wells Fargo Bank, 164 N.H. at 611;
Woodstock Soapstone Co., 133 N.H. at 816, the district division erred by ruling
on this claim. Consequently, we vacate the district division’s order.

       Finally, relying upon Moore v. Hill, 97 N.H. 40 (1951), the defendant
argues that the eviction notice was invalid because it was signed only by
Friedline. In Moore, we addressed whether three of four owners of property can
give a valid eviction notice without the consent of the fourth. Moore, 97 N.H. at
41. We concluded that they could not. Id. We did not address, however,
whether an eviction notice is invalid simply because it is not signed by all of
the owners, see id. at 41-42, and the defendant has not cited any authority,
nor are we aware of any, requiring that all property owners must sign an
eviction notice for it to be valid.

      Here, the district division found that “Friedline was filing the [eviction
notice] on behalf of both owners of the premises.” The defendant presents no
argument – beyond the lack of Kellogg-Roe’s signature on the eviction notice –
that Kellogg-Roe did not consent to the eviction. Consequently, we conclude
that the district division correctly ruled that the lack of Kellogg-Roe’s signature
on the eviction notice did not require dismissal of the action.

                                                   Vacated and remanded.

      DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.




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