This action was referred, and due notice of the hearing was given by the referee to the parties. The referee attended, and also the defendant, but the plaintiff did not appear, and the referee reported the facts to the court. Thereupon, on motion of the defendant, the court ordered that the plaintiff should pay the referee's fees before she should be permitted to go to the jury; and the plaintiff excepted.
The referee law of 1874 is closely analogous to the provisions of the General Statutes in regard to auditors. Sec. 5 of ch. 212 of the Gen. Stats. provides that "If either party, neglects or refuses to appear before the auditor, * * the auditor may certify the same to the court." And section six declares that "The court shall thereupon render judgment against such party, as upon nonsuit or default, and, if necessary, cause the damages to be assessed by the jury."
These provisions of the General Statutes have been incorporated into the new rules, and made applicable to referees — Rule 67. I think the court, in the exercise of its discretion, might have ordered a nonsuit in this case, reasoning from analogy, and applying the rule to references which the law applied to auditings. If a nonsuit might have been ordered, it would seem to follow that it was within the discretion of the court to order the plaintiff to pay the referee's fees before going to the jury. The greater power would include the less. No constitutional question appears to be involved in this controversy. The case of Copp v. Henniker, 55 N.H. 179, establishes the doctrine that the act of 1874 is constitutional, so far as it authorizes courts to send causes to referees. It follows that the plaintiff, or the defendant, or the county, must pay the referee's fees, and if any injustice has been done, it may be remedied without disturbing the verdict. The report of the referee was not offered in evidence, and it is not easy to see how the right of the plaintiff to a trial by jury has been in any way impaired by the order of the court in regard to the fees of the referee. The plaintiff has had her trial before the jury, and the obnoxious order could not have influenced the result of that trial in the least degree.
2. It is objected that Shaw had no power of attorney from Cole, and therefore no sufficient authority to act as Cole's agent in the sale of the property in controversy. But the difficulty in the case is not so much regard to Shaw's authority to act for Cole, as in regard to Russell's knowledge, actual or constructive, of any infirmity in Shaw's title. The mortgage contained a power of sale. The sale was to be by auction. It was by auction, and the property was bid off by a third person. Holt acted as auctioneer for Cole. I am not aware that any law requires that an auctioneer, in making a sale of real estate by auction, must have authority in writing from the owner. Indeed, it is expressly held, in Yourt v. Hopkins, 24 Ill. 326, that a verbal authority authorizes an agent to act as auctioneer, and to sell lands, though not to make a deed of them. There was nothing, therefore, as a matter *Page 566 of law, to put Russell upon inquiry; — and, as a matter of fact, the jury have found that at the time he purchased he had no knowledge of the defect in the sale, or in Shaw's title, and had no notice of such facts as should have put him, as a reasonable man, upon inquiry. In Very v. Russell, decided in June, 1874, the court hold as follows in regard to Russell's title (FOSTER, J.): "Apparently, the acquisition of his grantor's title was regular. The record gave the defendant no intimation of a defect in the title, and afforded no intimation of a fraud practised by the mortgagee. The mortgage conferred a power of sale, and pointed out the modus operandi thereof. Ostensibly, the power was legally executed. The property was struck off to a third person at the auction. The mortgagee gave that person a quitclaim deed, which would have been (as it apparently was) sufficient to pass all the titles which the mortgagor had, if the sale by auction under the power had in fact been (as it apparently was) an effectual foreclosure of the mortgage."
3. The mortgage to Cole appeared to be dated October 29, 1863, and the acknowledgment of the mortgage appeared to be dated October 24, 1863. The defendant was permitted to show, by D. H. Woodward, who took the acknowledgment, that its date was erroneous, and that the mortgage was not acknowledged until after it was executed. It is claimed by the plaintiff that it was irregular to show by parol evidence the error in the date of the acknowledgment; that this could be done only by an amendment made by him, and under the direction of the court. It has been held that the date is no part of the substance of a deed, and may be contradicted. Comings v. Wellman, 14 N.H. 292; Gibson v. Poor, 21 N.H. 446, and authorities there cited.
Whether this doctrine can be applied to the acknowledgment of a deed, is a matter that need not be decided. In Janvrin v. Fogg, 49 N.H. 357, it is held that amendments, which are to be passed upon by the court, may be allowed after verdict, and judgment may then be rendered upon the verdict. Howard v. Turner, 6 Greenl. 106; Buck v. Hardy, 6 Greenl. 162; Whittier v. Varney, 10 N.H. 291; Stevenson v. Mudgett, 10 N.H. 343. This point, therefore, if well taken, would not cause the verdict to be set aside.
The fourth point made in the plaintiff's brief is not supported by the facts found in the printed case, and the fifth has been sufficiently examined.
Exceptions overruled, and judgment on the verdict. *Page 567