Nute v. Nute , 41 N.H. 60 ( 1860 )

Bellows, J.

The plaintiff claims under deeds made by his grandfather, Andrew Nute, many years ago, conveying different parts of the lands demanded to his father, Daniel Nute, and his mother, Susan Nute, both decased, and to himself and to his brother, George M. Nute, who is also dead. And he claims that the deeds were duly executed and delivered, so as to vest the title. On the other hand, the defendant’s case is, that the deeds were never acknowledged or delivered, but that they were prepared in connection with a bond or lease, designed to secure to the grantor a maintenance, and to be executed by the grantees, or some of them, and that, although he signed the deeds, yet as Daniel Nute declined to execute the bond or lease, the said Andrew Nute refused to complete or deliver the deeds. And it appeared that the deeds were never acknowledged or recorded, and were lost.

It became then a material inquiry whether such bond or lease was made at that time, and as part of the family arrangement; and if made, what was done with it? and what was done with the deeds, and by whom were they kept? and were the deeds and bond, or lease, kept together or not ? The plaintiff’s case is not that the deeds were delivered to the grantees personally, but to Susan Nute, for them; and it appeared from the plaintiff’s testimony that they were afterward in the grantor’s possession, and delivered by him to Walter Durgin for safekeeping. This evidence was proper for the jury to weigh, as having some tendency to show that the deeds were understood by the grantor to be of value as muniments of title. If the unexecuted bond or lease was deposited at the same time and for the same purpose, the weight to be attached to such deposit of the deeds alone, would be diminished, and, under some circumstances, wholly destroyed. Indeed it might, in the estimation of the jury, tend legitimately to strengthen the defendant’s position. And at all events, evidence that the bond or lease was so deposited, must be regarded as material, and proper for the consideration of the jury. The testimony of Walter Durgin teuded to show that the deeds alone were deposited with him, and on cross-examination, as it seems, he testified that he had no recollection that there was among those papers any bond or lease, and that he thought he did not swear there was, on the former trial. To contradict the witness, the defendant offered to prove.that on the former trial he testified, “ I think, and it is my belief, I had among those papers a bond or lease to Andrew Nute, by whom to be signed I can’t say.” And we think the evidence should have been received. Without it the testimony of Durgin substantially affirms a deposit of the deeds alone, and although proof of his former statement might not be legitimate evidence that the bond or lease was also deposited', yet it would properly tend to impeach his credit and diminish the weight of his testimony as to the circumstances connected with the deposit of the deeds. Whether the bond or lease was deposited at the same time or not, was a circumstance bearing upon, and qualifying the character of the act as much as a verbal declaration made at the time and part of the res gestoe; as if he had stated that the deeds were to be held for the grantees, and delivered to them whenever they should call for them, or be delivered when they executed the bond or lease, and not before.

Nor does the language used by the witness at the trial justify the rejection of the proof offered, upon the ground that it was not a denial' that the bond or lease was deposited with the deeds. The statement of the witness already tended to prove that the deeds alone were deposited, and with no other evidence upon that point, the jury could not well have found otherwise. On the other hand, his testimony at the former trial, if it accorded with what was offered, legally tended to prove that the bond or lease was deposited with the deeds, and, therefore, was in direct conflict, and upon a material point. It is quite well established that the testimony of a witness is not excluded because he uses forms of expression that imply some doubt in his mind, such as “ I think,” “ it is my impression,” and the like. Hoitt v. Moulton, 21 N. H. 588; State v. Flanders, 38 N. H. 332; 1 Gr. Ev. sec. 440. If, then, testimony of this character has a legal tendency to prove the fact so stated, it would be altogether unreasonable to hold that the witness could not be impeached by proof of former statements by him, which tend to prove the opposite. If it were so, it is easy to see that the doubtful forms of expression would often be resorted to, to avoid the hazard of impeachment. In the case of Martin v. Flanders, 25 N. H. 195, the defendant was allowed to contradict the statement of the plaintiff’s witness, that “he did not know that he had any interest,” &c., by his former statements, tending to show that he had such interest. So in Crowley v. Page, 7 C. & P. 789, where the witness said, “ I do not recollect saying to the defendant, in the presence of John Burton, that the hay was of good quality.” The case of Long v. Hitchcock, 9 C. & P. 619, was where the witness said he would not swear that he had not made a certain statement; and it was held, that there being no positive denial, a witness could not be called to prove that he did make the statement; but this was ruled, without much consideration, upon a suggestion of one of the jury, while the counsel for the defendant was addressing them. A similar doctrine was held in Paine v. Buston, 1 M. & R. 238, where the witness said he did not “recollect” making the statement. But from the reasons already stated, we are satisfied that the other is the true rule, and that, as is laid down in Martin v. Farnham, 25 N. H. 195, the witness may be contradicted by showing that he has made statements substantially different from those he made on the stand; and so we think they must be regarded, when the two statements legally tend to prove an opposing state of facts, as in the case before us. In accordance with these views are the cases, Sealy v. Georgia, 1 Kelley, 213, 7 U. S. Dig. 496-191, which is a strong case, and well reasoned; and People v. Jackson, 3 Parker, C. R. 590, 18 U. S. Dig. 763-211. Another consideration, adverse to the existence of a rule that contradictory statements shall not be received to impeach a witness unless his denial be positive, is the fact that in this State and many others, it is not necessary to make previous inquiry of the witness at all, as to the making of such conflicting statements. And this would seem to be decisive upon the general question.

As the verdict must be set aside upon the ground already stated, it will not be necessary to examine all the remaining questions, as some of them, at least, will not be likely to arise at another trial.

As to the exception that the defendant was not permitted to prove that before he purchased, Timothy E. Nute communicated to him the information derived from John A. Nute, one of the attesting witnesses of these deeds, it would be sufficient to say that the case does not show that the tenant was put upon inquiry as to the existence of these unrecorded deeds, and therefore the testimony, as the case stands, would bear only upon the question whether the deeds were actually delivered, if, indeed, it was not actually immaterial. But, as it is asserted by the tenant’s counsel that the plaintiff, by the course of the trial, was enabled to take the position that the tenant was thus put upon inquiry, and as this seems not improbable, from what is stated, we have thought proper to state our views upon the general question. As to what shall put a party upon inquiry, it is impossible to lay down any general rule, but if facts are shown that place him in this position, he will be charged with notice of all such facts as he might have learned by reasonable inquiry. If, as in this case, it be sought to charge him with notice of a prior unregistered deed, and the point in controversy be whether it was delivered or not, an inquiry of the grantor and the attesting witnesses would, in general, seem to be clearly within the line of his duty; although the extent to which that inquiry should be carried must depend upon the circumstances of the case and the facts elicited, as in Rogers v. Jones, 8 N. H. 264. To determine whether or not reasonable inquiry has been made, and whether it resulted in obtaining knowledge of the conveyance, the information obtained from the proper sources must of necessity be shown, and therefore it must be competent to prove the statements made in reply to the inquiries which he is bound to make. And we think that the competency of these statements is not necessarily limited to such as are made in answer to inquiries put with the view of determining whether the party shall purchase the property in question or not. But we see no reason for excluding proof of information coming from the right sources, and upon which it was prudent for the party to rely, though communicated without any reference to a purchase. Of course a reliance upon information obtained without reference to the subsequent purchase would be open to observation, as less likely to be complete and satisfactory.

Upon these views the statements of the grantor, the subscribing witness, and of the person who made the deeds, if shown to be present at the signing and delivery of them, so far as there was any, would be admissible; the object being to rebut any inference of fraud in the subsequent purchaser, by showing that he acted upon due inquiry and in good faith. ' In determining what are the proper sources of inquiry, the judge who tries the -cause must be governed by the peculiar circumstances of each case, and will discriminate carefully between information offered, to bear mainly upon tbe question, whether the conveyance was actually made; and that which is obtained upon due and necessary inquiry at the right sources of information, and bearing only upon the question of notice.

The advice of Mrs. Horn to the tenant, that he should take a lease of the farm of Andrew Nute, was, at most, an indirect expression of an opinion that he had title to it. It was offered to affect her credit, as inconsistent with her testimony, that Andrew had told her he had finished the deeds, that they were witnessed, and given up to Susan. In Eaton v. Larkin, 5 C. & P. 372, where the witness, a broker, who had effected the insurance for the plaintiff, testified that certain facts, claimed by the underwriter to be material to the risk were not communicated, and it was proposed by the plaintiff to contradict him by showing that he had previously expressed the opinion that the underwriters “had not a leg to stand upon,” it was held by Tin dal, J., that it was not admissible, being merely an opinion and not the statement of a fact. And this distinction is recognized in 2 Cow. Phill. Ev. 727 and 772, and also in 1 Gr. Ev. sec. 449, and note 1 on page 619; and in Holmes v. Anderson, 18 Barb. 420. When, however, the original testimony of the witness is but the statement of an opinion as to the value of property, he may be contradicted by proving that he had before expressed a different opinion, as in Daniels v. Conrad, 4 Leigh, 401, 405. Beside, the beating of this evidence is so very remote that courts would not be inclined to disturb a verdict on account of its rejection.

The testimony of James Nute, that he did not tell John A. Nute that the old gentleman was not capable of making a deed, tvould seem to have been rightly rejected, unless the testimony of John A. Nute was, as stated by the defendant’s counsel, such as to imply a virtual admission by the defendant, that the deeds had been delivered, but were inoperative for want of capacity, or such as to show that in a conversation touching the fact of a conveyance to those under whom the plaintiff claims, the tenant had objected to the conveyance solely for want of capacity in the grantor.

The re-examination of 'Walter Durgin was within the discretion of the judge who tried the cause, and we see no objection to the way it was exercised.

TJpon the views stated, the verdict must be set aside and a new trial granted.