Sessions v. Little

9 N.H. 271 | Superior Court of New Hampshire | 1838

Parker, C. J.

The declarations of the parties, respecting the papers delivered by the plaintiff to Bean, at the time of the execution of the deed and bill of sale, were competent evidence, and should have been admitted. Where evidence of an act done by a party is admissible, his declarations, made at the time, having a tendency to elucidate, or give a character to the act, and which may derive a degree of credit from the act itself, are also admissible, as a part of the res gestee. The declaration proposed to be proved in this case may have a material bearing in giving a character to the act of delivery, or may have a direct tendency to elucidate that act, and derive a degree of credit from the fact that the papers were passed over at the time. The question is whether any consideration was received for the sale. It appears that the vendee handed to the vendor certain papers. These may have been evidence of debts due from the vendor to the vendee, and delivered up as the consideration of the conveyance, or they may not. If it was said that they were of that character, and that they were received in satisfaction, it will show that the vendor received, at the time, something which he admitted, to be of sufficient value, as payment. There is an importance, therefore, attached to the declaration, as part of the transaction itself. It may at least show that the parties professed, the one to pay, and the other to receive, the consideration. How far it may satisfy a jury that what was done was, in good faith, a payment, is another matter. The weight of the evidence may be but light, hut it is admissible. 1 Stark. Ev. 46-49 ; 8 N. H. Rep. 262, Gordon vs. Shurtliff.

The instruction to the jury was not strictly correct, even if the validity of the sale, and the rights of the parties, depended upon the laws of this state. It is not necessary, however, to discuss that question at this time. The contracts under which both parties claim were made in the state of Maine, where the vendor resided, and where the property was situated, and the rights of the parties are therefore to be settled by the laws there in force, at the time when the contracts were made. Story’s Conflict of Laws 200, 317 ; French vs. Hall,Cheshire, July T. 1838, ante 137.

The fact that the defendant was an inhabitant of this state when he purchased, and that after the purchase he brought the property here, cannot alter the case, or change the rule by which we are to enquire whether the sale to the plaintiff was valid against a subsequent purchaser, and whether the defendant shows himself to possess that character.

There has been no enquiry upon this point, and it may be that there is a difference in the rules of law upon this subject in the two governments. 5 Green. 295, Sherwood vs. Marwick.

For this reason, as well as on account of the rejection of the evidence, there must be a New trial.