Flanders v. Davis

19 N.H. 139 | Superior Court of New Hampshire | 1848

Gilchrist, C. J.

It is contended by the counsel for the defendant that the deed of a person imbecile, and, therefore, not capable of making contracts, is voidable only, and not void, and that neither the grantor or his heir could avoid it without restoring the consideration received, so far as practicable.

But when a man makes a deed which conveys no estate out of him, his estate descends in the ordinary way. His heir takes it subject to no condition implied from the mere facts that it was conveyed, and a consideration received therefor. There might or might not be circumstances which would make the estate of the ancestor liable to repay the consideration received. If there were, it would not follow that it would be necessary for the heir to repay it, before he could recover the land. He does not take the land coupled with the condition of repayment.

The testimony of Dr. Batchelder stands on no other ground than it would have occupied had Dr. Batchelder been cross-examined by the plaintiff on the stand. The questions might have been even more leading than they were. The purpose was to detract, by the further examination and by his own answers, from the weight to which his original deposition would otherwise have been entitled, and we see no objection to the examination.

Secondly. The answers to the questions made the questions immaterial.

The clause in the deposition of Hannah Flanders was properly read. It became immaterial by the subsequent proof of the fact, and the deposition might have gone to the jury, even without this clause having been read, on the ground of its immateriality.

The presumption that deceased attesting witnesses to a deed would testify to the sanity of the grantor, does not exist. We may as well presume that they would testify to all other facts which their situation gave them probably the means of knowing, as that they would testify to this fact. And the citation from Greenleaf’s Evidence at the bar, seems to corroborate this view.

The tenant has no claim to betterments. It is the increased value of the land, by reason of the buildings and other improvements made by the tenant, and those under whom he claims, that the jury may give the tenant, and the value of no other improvements. This is a statutory right only, and we are governed by the statute.

It is the duty of the counsel on each side to arrange and select the depositions and other papers, which he proposes to deliver to the jury when they retire. He has the custody of his own papers, and upon him must rest the responsibility of giving nothing to the jury but what is legal. This is the practice and the common sense of the matter, and it would lead to great difficulty and confusion, if, in the hurry of business after the case is closed and the jury are retiring, each counsel, neglecting the arrangement of his own papers, must be engaged in watching the movements of the opposite counsel, and in seeing that he puts nothing into the hands of the officer which should not be there. From this responsibility he might be relieved only by an assent by the other side that testimony, which had been ruled out, should, nevertheless, go to the jury, or by such conduct on the part of his antagonist as would estop him from saying that the verdict should be set aside. ¥e cannot find an assent here upon the evidence. Mr. Wilcox went to the bar to see if the papers had been selected for the jury, and he cautioned Mr. Morrison that no deposition should go to the jury, any part of which had been ruled incompetent. His object was that nothing incompetent should go to the jury, and so far was he from assenting to all the evidence being submitted, that he selected one deposition which attracted his notice and excepted to it, and it was withdrawn. If there be any view which could prevent the verdict from being set aside on this ground, it would be that the counsel is now estopped from asking the court to interfere. Mr. Wilcox had the bundle in his hands ; he examined them to a certain extent, and then chose to stop; and, perhaps, it might be said that having gone thus far, he relieved the opposite counsel from the responsibility which otherwise would remain upon him. How this might be it is unnecessary now to settle.

The witness (Morse) was incorrectly excluded. Bradish, under whom he claimed, took his deed from the tenant before the commencement of the suit. The judgment for the plaintiff, then, would be inoperative as to him, for he would not be privy to it. The tenant might have disclaimed that part. This witness might still litigate this question with the demandant. Had he claimed by a title subsequent to the suit, he would be bound, for he would take subject to the contingency that the title on which his own rested might be defeated, and if it should be, his own title would be affected, of course. This particular view of the question was not taken at the trial, whether he had such a privity as would bind him, but upon examination the exception was taken broadly enough to comprehend it.

For this cause, there must be a new trial.

Verdict set aside.