Gould v. White

26 N.H. 178 | Superior Court of New Hampshire | 1852

Eastman, J.

It is contended that the verdict rendered in this case was against evidence, and a motion is made to set .it aside on that account.

Questions similar to this have been raised and considered several times by this .court within the past few years, and the rules governing motions of this class have become well established.

The court will not set aside á verdict as against evidence in a cause, merely because they might, upon an examination of the evidence, have arrived at a result different from that found by the jury. Nor will they set it aside on this ground, where the credibility of witnesses is to be considered, presumptions are to be raised and inferences to be made, and where the nature of the evidence is such that different persons might reasonably have different impressions concerning it. Wendell v. Safford, 12 N. H. Rep. 171.

They will not interfere to set aside a verdict as against evidence, unless fully satisfied that it was procured by corruption, or by manifest mistake in the consideration and application of the evidence. Lisbon v. Bath, 1- Foster’s Rep. 319.

To induce the court to interfere, it must be apparent that the jury have misunderstood or totally disregarded the instructions of the court upon the evidence, or must have neglected properly to consider the facts, and must have overlooked prominent and essential points in the evidence, so that substantial justice has not been done.

Such is the well settled doctrine in this State, and by applying it to the evidence reported in this case, there can be no doubt of the conclusion to which it will lead. The credibility of a witness — and an important one too — Levi Parker, was to be passed upon. The tenant relied upon payment of the mortgage debt, by virtue of which the demandant claimed the premises. Parker testified that he went to the house of the demandant, for the purpose of negotiating with him for the purchase of a part of the demanded premises, and in a conversation between them he asked the demandant if he owned the White farm, to which he replied that he did not. That he then asked him if he expected that the farm would fall into his hands, to which he also replied that he did not. That he then asked him if White had paid the mortgage which he had upon the premises, and he answered that he could not tell whether he had or not, until he had a settlement with him; and it might turn, out that he owed White a trifle or White owed him a trifle. Now if Parker was disbelieved, his testimony would of course go for nothing; but if he was credited, it would tend strongly to show that the debt had been cancelled, and that the premises belonged to White.

Presumptions might be raised and inferences drawn, and the nature of the evidence was such that different persons might take different views of it. There was evidently considerable conflict between the evidence of the parties, and it may appear very differently on paper from what it did before the jury. But we discover no evidence of corruption or mistake by the jury, and whatever our views might be as to the weight of the testimony, we see nothing that will warrant us in setting aside the verdict as against evidence.

If, then, the instructions of the court were correct, the verdict must stand.

To the first part of the instructions there can be no well founded exception. It was in accordance with the statute provisions for the redemption of mortgaged premises, while the right to redeem continues.

Nor would there seem to be any doubt as to the correctness of the latter branch of the instructions. The court, in effect, instructed the jury, that notwithstanding the foreclosure might have been complete, yet the demandant might waive itj and receive payment of the mortgage debt. And this rule is well recognized both here and elsewhere.

In Batchelder v. Robinson, 6 N. H. Rep. 12, it was decided that if a mortgagee, who has entered and been in possession of the land for a year, in order to foreclose the right to redeem, afterwards accepts the money secured by the mortgage, the acceptance is a waiver of the foreclosure. And in Deming v. Comings, 11 N. H. Rep. 474, it was held that if there has been a foreclosure of a mortgage, a subsesequent receipt of a part of the mortgage money, by the party holding the mortgage, is a waiver of the foreclosure.

To the same effect are Willard v. Henry, 2 N. H. Rep. 120; Quint v. Little, 4 Greenl. 495; and Dexter v. Arnold, 1 Sumner 118.

There was no error in the course pursued by the court in alluding to the fact of the length of time that the tenant had been in possession. The tenant did not claim the premises by adverse possession, but by having paid the mortgage with the assent and by the agreement of the demandant. The question was one of payment, and although as a matter of law, the payment of a debt due by specialty will not be presumed until the lapse of twenty years, yet a shorter time, connected with other evidence, may be left to a jury, from which they may find payment. 1 Greenl. Ev. § 39, arid cases cited; 2 Phil. Ev. 171; Matthew’s Presump. Ev. 373; Winstanley v. Savage, 2 McCord’s Ch. Rep. 435, 439; Goldhawk v. Duane, 2 Wash. C. C. Rep. 323; Blake’s Ex’rs. v. Livingston’s Ex’rs. 3 McCord’s Rep. 340.

The lapse of time was a circumstance proper for the jury to consider, in connexion with the payments made, and the unexplained character of the possession.

We think that the exceptions must be overruled, and $iat there must be

Judgment on the verdict. ■