56 N.H. 559 | N.H. | 1876
Lead Opinion
FROM CHESHIRE CIRCUIT COURT. 1. It does not appear that the plaintiff was prevented from presenting her case as fully to the jury as she would have done if she had not been required to pay the fees of the referee. As the verdict, therefore, was not affected by the order, the ends of justice do not require that it should be disturbed on that account. The report of the referee was not read to the jury, and I cannot see how the plaintiff's constitutional right to a trial by jury was in any way abridged or impaired by the order in regard to payment of fees.
2. A. deed is good, although not dated, or though it have a false date, or an impossible date, as February 30th, provided the real day of its being dated or delivered can be proved. 2 Bl. Com. 304. In ancient times, the date was commonly omitted. Ib., note 12; Gibson v. Poor,
3. Whether the defendant should be permitted to testify, the plaintiff's intestate being dead, depended upon whether it was made clearly to appear from the evidence that actual injustice would otherwise be done; and the discretion exercised by the presiding justice is subject to revision by this court. Gen. Stats., ch. 209, sec. 17. In ordinary cases, "the safe guide and decisive test is found in the inquiry whether the deceased, if alive, could testify to the same matters." Chandler v. Davis,
4. For the same reason, the evidence as to the price paid for the French lot becomes immaterial. That evidence of the price at which other property of like character and condition was actually sold in the *564
vicinity, at or about the time in question, is admissible, is settled beyond controversy. White v. Concord Railroad,
5. The instructions to the jury were correct, and covered the whole case. Cole's authority to sell the mortgaged premises was in writing, being contained in the mortgage, and so within the statute of frauds. But the question was not whether the foreclosure was valid as against the plaintiff. In executing the mortgage she had conferred the power on Cole to sell the premises, and had designated what steps should be taken by him. The real question was, whether the defendant was a purchaser in good faith for a full consideration, chargeable with no laches, and placed in no circumstances requiring him to institute inquiries. If the record gave the defendant any information of a defect in the title, or any intimation of the fraud practised by Cole on the plaintiff, he could of course stand no better than Cole himself. All this was left to the jury, and they were particularly instructed that neither Cole nor Shaw could purchase the property as against the plaintiff; and the jury must have understood, from the instructions, that if Russell purchased with knowledge of the defect in Shaw's title, or with notice of such facts as should have led him to make inquiries, he would acquire no title that would be good against the plaintiff.
The doctrine upon which the defendant's title must stand was held in this case, when decided at the August adjourned term, 1874 (not yet reported), to rest upon the authority of Harrison v. Forth, 1 Eq. Abr., Notice A 6, p. 331, decided in 1695, which is, that every bona fide purchaser without notice, and not chargeable with notice, shall be protected and confirmed in his title, according to the legal interpretation of the instrument of conveyance. FOSTER, J., arguendo, quotes Judge Story as follows: "If a person who has notice, sells to another who has no notice, and is a bona fide purchaser for a valuable consideration, the latter may protect his title, although it was affected with the equity arising from notice in the hands of the person from whom he derived it; for, otherwise, no man would be safe in any purchase, but would be liable to have his own title defeated by secret equities of which he could have no possible means of making a discovery;" — see, also, Piper v. Hilliard,
The first and second instructions requested by the plaintiff were therefore properly refused, because they conflicted with the opinion delivered in this case at the August adjourned term, 1874. The third and fourth instructions prayed for were substantially given by the court, though not in the terms requested. But, as before said, the main question for the jury was, whether the defendant purchased in good faith, without knowledge or notice of the infirmity in the title of Shaw.
According to these views, then, the defendant is entitled to judgment on the verdict.
LADD, J., concurred. *565
Concurrence Opinion
This action was referred, and due notice of the hearing was given by the referee to the parties. The referee attended, and also the defendant, but the plaintiff did not appear, and the referee reported the facts to the court. Thereupon, on motion of the defendant, the court ordered that the plaintiff should pay the referee's fees before she should be permitted to go to the jury; and the plaintiff excepted.
The referee law of 1874 is closely analogous to the provisions of the General Statutes in regard to auditors. Sec. 5 of ch. 212 of the Gen. Stats. provides that "If either party, neglects or refuses to appear before the auditor, * * the auditor may certify the same to the court." And section six declares that "The court shall thereupon render judgment against such party, as upon nonsuit or default, and, if necessary, cause the damages to be assessed by the jury."
These provisions of the General Statutes have been incorporated into the new rules, and made applicable to referees — Rule 67. I think the court, in the exercise of its discretion, might have ordered a nonsuit in this case, reasoning from analogy, and applying the rule to references which the law applied to auditings. If a nonsuit might have been ordered, it would seem to follow that it was within the discretion of the court to order the plaintiff to pay the referee's fees before going to the jury. The greater power would include the less. No constitutional question appears to be involved in this controversy. The case of Copp v. Henniker,
2. It is objected that Shaw had no power of attorney from Cole, and therefore no sufficient authority to act as Cole's agent in the sale of the property in controversy. But the difficulty in the case is not so much regard to Shaw's authority to act for Cole, as in regard to Russell's knowledge, actual or constructive, of any infirmity in Shaw's title. The mortgage contained a power of sale. The sale was to be by auction. It was by auction, and the property was bid off by a third person. Holt acted as auctioneer for Cole. I am not aware that any law requires that an auctioneer, in making a sale of real estate by auction, must have authority in writing from the owner. Indeed, it is expressly held, in Yourt v. Hopkins,
3. The mortgage to Cole appeared to be dated October 29, 1863, and the acknowledgment of the mortgage appeared to be dated October 24, 1863. The defendant was permitted to show, by D. H. Woodward, who took the acknowledgment, that its date was erroneous, and that the mortgage was not acknowledged until after it was executed. It is claimed by the plaintiff that it was irregular to show by parol evidence the error in the date of the acknowledgment; that this could be done only by an amendment made by him, and under the direction of the court. It has been held that the date is no part of the substance of a deed, and may be contradicted. Comings v. Wellman,
Whether this doctrine can be applied to the acknowledgment of a deed, is a matter that need not be decided. In Janvrin v. Fogg,
The fourth point made in the plaintiff's brief is not supported by the facts found in the printed case, and the fifth has been sufficiently examined.
Exceptions overruled, and judgment on the verdict. *567
