| Superior Court of New Hampshire | Dec 15, 1851
The indictment states that the original and genuine deed- of assignment, which the respondent was charged with altering, was signed, sealed, witnessed by two witnesses, and duly and legally recorded in the registry of deeds of Rockingham county. The assignment to Noah Clax'k, produced in evidence, was not recorded. If the statement that the deed was recorded is to be taken as the separate allegation of a fact or circumstance in the case, it may be x’egarded as immaterial and rejected as surplusage. But if it is to be understood as part of the description of the instrument alleged to have been altered, the proof should correspond with that part of the description ; otherwise it would not appear to be the same deed that is described in the indictment. Roscoe’s Or. Evidence, 93, 94.
It is said that the assignment would be sufficient without record. So the instrument, as the law is held in this State, would be sufficient to transfer the mortgage interest, though it were not acknowledged, witnessed, or even sealed; if it transferred the debt secui’ed, it would carry with it the mortgage as air incident; still it would hardly be contended that these other state, ments of acknowledgement, witnessing and sealing wex'c not descriptive of the deed and necessary to be proved as alleged.
The deed is described as a statutory conveyance, signed, sealed, witnessed, acknowledged, and recorded; and the recording of the deed must be regarded, as part of the description of such a conveyance. The other parts of the description are equally unnecessary to show that the deed was sufficient to transfer the mortgage; and it is not easy to perceive any substantial distinction, that ckr be taken for this purpose, between these different statements, which all go alike to constitute the description of a deed executed and recorded according to the statute ; and though an assignment is operative to transfer the mortgage without registration, it is a proper and not unusual precaution to record such deeds.
It is the duty of the register to certify the record of the deed; and according to the course of the office, and immemorial usage, this certificate is put by the register on the deed itself, before.
We are not able to look upon this statement that the deed was duly recorded, as well as witnessed, and acknowledged according to the statute, in any other light than as part of the description of the deed and conveyance, which the defendant was charged with altering. We are, therefore, of opinion that the evidence on this point did not sustain the indictment.
The evidence of the acts and declarations of Miles -Burnham was clearly incompetent. There is no principle, on which they could be admitted against the defendant. Were they so entirely immaterial that the court can say the verdict ought not to be disturbed on their account ?
The respondent contends that proving that Miles Burnham, who made the assignment and knew the defendant, when he was about to make another loan on the security of the same land, searched the record to see if the defendant had made a conveyance of the land, had a tendency to show that Burnham would not trust the statement of the respondent, and therefore, must have looked upon him as a dishonest man: and that this would prejudice the defence.
There is another view of this evidence, which we think might give it an important bearing against the respondent. The deed produced was made, as it then stood, to Noah S. Clark. The government charged that it was originally made to Noah Clark. This was part of the case to be made out by the prosecution. Miles Burnham made the assignment, and the other person, who searched the records, drew it. They, therefore, must be supposed to have known whether the assignment was made to Noah Clark or Noah S. Clark. It does not appear that Noah Clark had any title in the land, unless he took it by assignment of this mortgage. Proving that Burnham and the other person searched for the record of the conveyance by Noah Clark, would leave it to be inferred that they understood and knew that the assignment was made to Noah Clark and not to Noah S. Clark; which
If the evidence had been, so far as the court could see, immaterial, still, if it had been such as would be likely to confuse the case and embarrass the defence, we think the court, especially in a criminal cause, would exercise a discretion to set aside the verdict. But looking upon this evidence as material, we are not called on in this case to exercise such a discretion.
Verdict set aside.