Fuller v. Rounceville

31 N.H. 512 | Superior Court of New Hampshire | 1855

Eastman, J.

When this case was before the court on a former occasion, it was held that the defendant might show the mortgage from Ela J. Rounceville to Sumner, as an answer to the action against himself. Fuller v. Rounceville. 9 Foster’s Rep. 554.

As the case is now presented, it appears to us that there is substantially but one question for the court to determine; and that is, whether Sumner was a competent witness. All the other material matters in controversy were settled by the jury under the instructions of the court. For instance, they settled that the sleigh was the same one mortgaged to Sumner ; that the plaintiff had acquired no title to it by purchase, pledge, or otherwise, nor had he had any possession of it till after the mortgage to Sumner; that the mortgage had not been cancelled or discharged by the payment or satisfaction of the note described in the condition, nor in any other way; and that the defendant took the sleigh under the authority and direction of Sumner.

Sumner was objected to as a witness on the ground of interest. Was this objection well taken ? The general rule is that interest, to disqualify a witness, must be legal, certain and immediate; either in the event of the cause itself, or in the record as an instrument of evidence in support of the claims of the witness in a subsequent action. Page v. Weeks, 13 Mass. Rep. 199; 1 Stark. Ev. 102; Bent v. Baker, 3 Term Rep. 27; Doe v. Tyler, 6 Bing. 390; Smith v. Prager, 7 Term Rep. 62; 1 Greenl. on Ev. § 386. The liability of the witness to a like action, or his standing in the same predicament with the party, if the verdict cannot be given in evidence for or against him, is an interest in the question merely, and does not exclude him. Evans v. Eaton, 7 Wheat. 356, 424; Stewart v. Kip, 5 Johns. 256; 1 Greenl. on Ev. § 389. And one trespasser is a witness for his co-trespasser. Walton v. Shelley, 1 Term Rep. 301; Duncan v. Meikleham, 3 C. & P. 172; Curtis v. Graham, 12 Mart. 289; 1 Greenl. on Ev. § 389.

This defendant was sued in trespass for taking and carrying away a certain sleigh alleged to be the property of the plaintiff. To this he pleaded the general issue, that he was not guilty; and a verdict in his favor would establish that fact; that is, that he did not wrongfully take and carry away the sleigh of the plaintiff. If he should prove that he did not take the sleigh, or that it was not the property of the plaintiff, he would in either event succeed. But such a verdict would not establish the rights of third persons, for there is nothing in the pleadings or the issue showing that their rights are in any way involved. A verdict in favor of the defendant could not prevent the plaintiff from bringing a similar action against Sumner, and if he could show that the mortgage of Sumner was for any reason invalid, it would be no legal answer for Sumner to say that the mortgage had once been found good in an action between the plaintiff and Rounceville. Sumner’s right to the property was not established by this verdict, and it could not be used in a future action either for or against him. Upon that ground, therefore, he had no legal interest in the result of the present suit. He might have feelings as to the result, and an interest in the question of the ownership of the sleigh, but these were matters that went only to his credibility and not to his competency. A judgment in favor of Rounceville could not be used by Sumner in any future controversy of his in regard to the sleigh.

Again, Sumner had no immediate legal interest in the result of the suit. He was not liable either for costs or damages, nor had he entered into any agreement to indemnify Rounceville for taking the sleigh. The action was not brought for the sleigh, but for damages for the alleged wrongful taking. Sumner’s right to the sleigh was not established by this suit, and he could legally hold it none the better for a verdict and judgment in favor of Rounceville. In a legal point of view he could neither gain nor lose by the result. .He was, therefore, a competent witness, and the ruling of the court admitting him was correct.

No exception was taken to the details of Sumner’s testimony, and no question was raised thereon ; but the admission of the mortgage was objected to for several reasons. Judging from the manner in which these objections are stated in the case, we should infer that they were not seasonably taken ; but they may have been.

The first objection was, that the description of the property in the mortgage was not sufficiently specific to indicate the sleigh in question. "We have not the mortgage before us, and cannot determine from inspection what weight ought to be given to this objection on the ground of defect in the description merely. But this would seem not to be necessary, for the jury have decided that the sleigh in controversy was the one included in the mortgage. That decision must remove this objection to the mortgage.

The second objection was, that it did not appear from the mortgage, or any other evidence in the case, that the same had been recorded in the town of Dalton, where the mortgager resided. The evidence showed both the mortgager and mortgagee to have been residents of Dalton at the time the mortgage was executed. Upon the back of the mortgage was the following memorandum: “ Rec’d June 4, 1850, 6 o’clock, forenoon, and recorded page 88, vol. 2, and examined by me. Wm. B. Crane, town clerk.” This is probably the usual form adopted by town clerks, when making a certificate of record upon the original mortgage. It is also believed to be the course taken by many recorders of deeds. Both are certifying officers to some extent, and when called upon for copies from their records, either do or should state the town or county records from which the copies are taken, and also their official character. Upon the originals, however, we think that a certificate like the present one is sufficient, prima facie, of the record having been duly made in the right office. In this case the mortgage itself was produced, and its execution either proved or admitted. Both parties were residents of Dalton, and the property was there situated. On the back of the mortgage is what purports to be a certificate of a town clerk that the mortgage has been recorded. Where ? Evidently in the town where the parties reside. This must be the construction until some evidence is introduced tending to show the contrary. Prima facie, this is what the certificate imports ; that it is properly recorded in the town where the law requires it to be; and a party questioning that fact must at least throw some suspicion upon it before a court will declare it insufficient.

The last exception was, that the note mentioned in the condition of the mortgage was not produced. But this exception is answered by the fact, that the production of the note was not called for by the plaintiff, either by having given notice to produce it upon the trial or by a request for it when the mortgage was introduced; and on cross-examination of the witness by the plaintiff its existence was shown, and to be in the hands of the mortgagee. This cross-examination, in the absence of any specific demand for the note, was competent to show the note secured by the mortgage to be unpaid; and the jury have found that fact, and that the mortgage had never been cancelled or discharged.

Entertaining these views in regard to the case, our opinion is that there should be,

Judgment on the verdict.