Bank of Newbury v. Eastman , 44 N.H. 431 ( 1860 )

Bartlett, J.

The copies of the judgment, execution and return of the extent were properly received to show the plaintiff’s title, and the copy of the writ and return of service to show the fact and date of the attachment. Packard v. Hill, 7 Cow. 434; Rathbone v. Rathbone, 10 Pick. 1. We need not inquire whether, if the case had required the production of the whole record, these copies would have been sufficient. See United States v. Wood, 2 Wheel. Cr. C. 326, cited in 2 C. & H.s Notes, Phill. Ev. 318. Whether the cashier had, by virtue of his office, authority to receive seizin for the bank or not (See Ang. & Am. Corp. 297 ; Story Agency, sec. 114 ; Corser v. Paul, 41 N. H. 24); there is sufficient evidence of a ratification of his act by the bank. Pratt v. Putnam, 13 Mass. 363; Smith v. Smith, 11 N. H. 462; Herring v. Polly, 8 Mass. 119; Odiorne v. Mason, 9 N. H. 29.

It is well settled that the re-delivery of an unrecorded deed for cancelation, to the grantor by the grantee, does not operate as a re-conveyance, but it will, under certain circumstances, estop the grantee from making proof of the deed so delivered up. However, the destruction of a deed by a party does not in all cases preclude him from showing its contents. Riggs v. Taylor, 9 Wheat. 483; 2 C. & H.’s Notes, Phill. Ev. 406. Where an unrecorded deed has been canceled or re-delivered to the grantor by the grantee, with the intention of revesting the title, the grantee can not “produce the deed, and the law will estop him in both cases to give secondary evidence to defeat the intended operation of his act in returning or annulling the deed.” Mussey v. Holt, 24 N. H. 252; Farrar v. Farrar, 4 N. H. 195; Dodge v. Dodge, 33 N. H. 495. Here the deed was re-delivered, not with the intent that the land should become the grantor’s, but merely that another deed might be substituted. The intention was not to revest the title in Clark to his own use, but only, if at all, that it might at the same instant enure to the benefit of Aldrich, by virtue of the deed then or already executed to him. See Crocker v. Pierce, 31 Me. 177; Hall v. McDuff, 24 Me. 312. The good faith of this transaction is not impeached, the rights of third parties have not intervened (Palmer v. Jenness, Rockingham, December term, 1862), and proof of the first deed in the present case would not defeat or impair any right intended to be given to Clark by the surrender. See Lawrence v. Lawrence, 42 N. H. 112. As there was no estoppel to show the deed, proof of it was properly admitted, and it showed title in Aldrich from its date, as against all having notice of it. All the evidence upon the point tends to show that before and at the date of the attachment, Aldrich, by his tenant, had open, visible and exclusive possession of the premises embraced in it. There is no conflicting evidence, and nothing to show that any question was made as to the credibility of the testimony; still the jury might have disbelieved the witnesses, and it may be that a verdict, by consent, would not be disturbed, if this were all. But the case, after stating this with other uncontradicted testimony at length, says, “upon this evidence the defendant contended that the levy upon the whole property was insufficient, because two of the appraisers were not disinterested persons; and that as to the property first conveyed to Mr. Aldrich, the defendant’s title was good from an earlier date than the attachment under which the plaintiffs now claim, and that, if not, he is entitled to the increased value, &c. And thereupon a verdict was taken, by consent, for the plaintiffs,” &e. The ruling of the court upon these positions of the defendant is not stated, but looking at these facts and also at the verdict, which is for the whole premises, allowing the defendant for betterments on the tract first conveyed, we understand that the court, in substance, ruled that the whole premises passed by the extent, but that the defendant was entitled to his betterments upon the tract first conveyed. But if, before and at the date of the attachment, Aldrich was in such possession of this tract as the evidence tended to show, that possession was sufficient notice of his deed; Bell v. Twilight, 22 N. H. 519; Hadduck v. Wilmarth, 5 N. H. 188 ; and in such case the title of Aldrich to this tract would have been good against the attachment and the extent. In this view the question as to betterments would become immaterial. The residue of the land would pass by the extent, and as the defendant’s title accrued subsequently to the attachment in this case, he would be concluded by the sheriff’s return to deny that the appraisers were disinterested. Howard v. Daniells, 2 N. H. 137; Fletcher v. Bank, 37 N. H. 400; Angier v. Ash, 26 N. H. 105; Grover v. Howard, 31 Me. 548; McKeen v. Gannon, 33 Me. 187; Rollins v. Moers, 25 Me. 196.

Although there may be no practice in this State authorizing the court to set aside a verdict in part (Knowles v. Bow, 22 N. H. 388), yet here we are especially empowered to do so by the agreement of the parties, to which we see no legal objection. Robbins v. Townsend, 20 Pick. 351. The plaintiffs are entitled to retain their verdict for the portion of the premises conveyed by Clark after the attachment, but as to the residue, which was conveyed by him March 22, 1853, the verdict must be set aside and a

New trial granted.