FROM CHESHIRE CIRCUIT COURT. 1. It does not appear that the plaintiff was prevented from presenting her case as fully to the jury as she would have done if she had not been required to pay the fees of the referee. As the verdict, therefore, was not affected by the order, the ends of justice do not require that it should be disturbed on that account. The report of the referee was not read to the jury, and I cannot see how the plaintiff's constitutional right to a trial by jury was in any way abridged or impaired by the order in regard to payment of fees.
2. A. deed is good, although not dated, or though it have a false date, or an impossible date, as February 30th, provided the real day of its being dated or delivered can be proved. 2 Bl. Com. 304. In ancient times, the date was commonly omitted. Ib., note 12; Gibson v. Poor, 21 N.H. 446, 447; Lee v. Mass. Fire Ins. Co., 6 Mass. 219. It is to be assumed that a proper case was made for the introduction of the copy. If the original had been produced, the court would, upon the testimony of Woodward, the magistrate who took the acknowledgment, have permitted him to amend his certificate. To this I see no objection, if the plaintiff deemed the date material. But the original not being produced, it was impracticable to make such amendment. Under such circumstances, the evidence of the magistrate was properly received to show the date of the acknowledgment.
3. Whether the defendant should be permitted to testify, the plaintiff's intestate being dead, depended upon whether it was made clearly to appear from the evidence that actual injustice would otherwise be done; and the discretion exercised by the presiding justice is subject to revision by this court. Gen. Stats., ch. 209, sec. 17. In ordinary cases, "the safe guide and decisive test is found in the inquiry whether the deceased, if alive, could testify to the same matters." Chandler v. Davis, 47 N.H. 465. The case does not find whether the plaintiff's intestate had any knowledge of the facts to which the defendant was permitted to testify. But Judge PERLEY, in Chandler v. Davis, says, — "We do not undertake to say that a case may not occur, where, to use the language of the act, it might not, on the evidence before the court, clearly appear that injustice or fraud would be done unless the surviving party were allowed to testify, though his testimony went to matters within the knowledge of the deceased." This discretion thus vested in the court will always be exercised with caution, so as not to conflict with the principles thus laid down. If the rule is ever to be relaxed, this seems to be clearly a case where it may safely be done. It is quite apparent that the witnesses introduced by the plaintiff had no accurate means of stating the amount of wood drawn from the Fox lot and from the French lot, and they would be quite likely to state the amount drawn from each lot from data entitled to but little consideration by the jury. The question, however, is not material at this time, the verdict being for the defendant.
4. For the same reason, the evidence as to the price paid for the French lot becomes immaterial. That evidence of the price at which other property of like character and condition was actually sold in the *Page 564 vicinity, at or about the time in question, is admissible, is settled beyond controversy. White v. Concord Railroad, 30 N.H. 188, and numerous other cases in the report; Morrison's Digest, title Evidence, pp. 362, 363.
5. The instructions to the jury were correct, and covered the whole case. Cole's authority to sell the mortgaged premises was in writing, being contained in the mortgage, and so within the statute of frauds. But the question was not whether the foreclosure was valid as against the plaintiff. In executing the mortgage she had conferred the power on Cole to sell the premises, and had designated what steps should be taken by him. The real question was, whether the defendant was a purchaser in good faith for a full consideration, chargeable with no laches, and placed in no circumstances requiring him to institute inquiries. If the record gave the defendant any information of a defect in the title, or any intimation of the fraud practised by Cole on the plaintiff, he could of course stand no better than Cole himself. All this was left to the jury, and they were particularly instructed that neither Cole nor Shaw could purchase the property as against the plaintiff; and the jury must have understood, from the instructions, that if Russell purchased with knowledge of the defect in Shaw's title, or with notice of such facts as should have led him to make inquiries, he would acquire no title that would be good against the plaintiff.
The doctrine upon which the defendant's title must stand was held in this case, when decided at the August adjourned term, 1874 (not yet reported), to rest upon the authority of Harrison v. Forth, 1 Eq. Abr., Notice A 6, p. 331, decided in 1695, which is, that every bona fide purchaser without notice, and not chargeable with notice, shall be protected and confirmed in his title, according to the legal interpretation of the instrument of conveyance. FOSTER, J., arguendo, quotes Judge Story as follows: "If a person who has notice, sells to another who has no notice, and is a bona fide purchaser for a valuable consideration, the latter may protect his title, although it was affected with the equity arising from notice in the hands of the person from whom he derived it; for, otherwise, no man would be safe in any purchase, but would be liable to have his own title defeated by secret equities of which he could have no possible means of making a discovery;" — see, also, Piper v. Hilliard, 52 N.H. 211. Under the instructions of the court, the jury must have found that Russell had no such knowledge or notice.
The first and second instructions requested by the plaintiff were therefore properly refused, because they conflicted with the opinion delivered in this case at the August adjourned term, 1874. The third and fourth instructions prayed for were substantially given by the court, though not in the terms requested. But, as before said, the main question for the jury was, whether the defendant purchased in good faith, without knowledge or notice of the infirmity in the title of Shaw.
According to these views, then, the defendant is entitled to judgment on the verdict.
LADD, J., concurred. *Page 565