Roberts v. Rice

1. The verdict was justified by the evidence if the testimony excepted to was properly received.

2. The deed of Andrew L. Roberts to the plaintiff's grantor, although unacknowledged, was valid as against the defendants. Acknowledgment and record are required only as protection to creditors and subsequent purchasers without notice. The defendants claim in opposition to Andrew's title, — not under it; and as against them, the absence of acknowledgment was immaterial. Stevens v. Morse, 47 N.H. 532, 533; Cushing v. Miller,62 N.H. 517, 524. The defendants now for the first time contend that the office copy was not evidence of what the unacknowledged deed contained. The objection is purely technical, and if relied upon should have been stated specifically at the trial so that the plaintiff might have an opportunity to obviate it by offering the deed itself. The failure to do this was a waiver of the objection. Heath v. Heath, 58 N.H. 292; Haines v. Insurance Co., 59 N.H. 199; Sanborn v. Wilder, 68 N.H. 471.

3. The testimony of Lizzie O. Sargent was properly received. It does not appear that Clara made any reply to the statement of Andrew's agent concerning the terms under which she was permitted to hold the premises. Her silence under the circumstances was, in effect, a declaration that Andrew was the owner. Corser v. Paul, 41 N.H. 24, 29. She was in possession, and her declaration as to Andrew's ownership was affirmative evidence of the plaintiff's title, notwithstanding the fact that the defendants do not claim under her, but claim under Timothy. Spence v. Smith, 18 N.H. 587, 592; Bradley v. Spofford, 23 N.H. 444, 446.

4. A part of the entries on the policy registers were made by an insurance agent, since deceased, and a part by the witness who produced the registers. They were all made in the regular and usual course of business, by persons whose duty required them to make the entries, and were evidence that policies of insurance on the buildings and furniture had been issued to Andrew and Clara. Lassone v. Railroad, 66 N.H. 345. It appeared that Clara attended to the insurance, and that the policies referred to were issued from an office in Pittsfield where she lived. This tended to prove that Clara procured the policies to be issued to Andrew and herself, which fact was evidence of an admission by Clara that Andrew had an interest in the property. Clara was in possession when the policies were issued, and an admission by her was evidence of the plaintiff's title. Spence v. Smith, supra; Bradley v. Spofford, supra.

5. The question of the admissibility of the inventory of Moses Dow's estate, not having been alluded to in argument, is regarded as waived and has not been considered.

Exceptions overruled.

PARSONS, J., did not sit: the others concurred.