The defendant requested the court to instruct the jury that the title of John B. Eaton to the premises passed to Abel E. Eaton in the deed to him, so John B. had no title January 2, 1878.
The plaintiff claimed, and the evidence tended to prove, that the deed to Abel E. was never delivered, and that it was a makeshift of John B. to enable him to procure better terms from his wife as to alimony, in her libel for divorce. These were questions of fact for the jury. The title did not pass if the deed was not delivered, and if made to defraud his wife it might be void as to her even if delivered. The request to charge was properly refused.
The court, subject to exception, charged the jury that the declarations of John B. Eaton, made at the time of the deed of release, were evidence on the question of fraud. The exception is not that the question of fraud was submitted to the jury, nor that the defendant was an innocent purchaser holding under Abel E. (this question does not appear to have been raised at the trial), but to the competency of the evidence on the issue on trial.
There was evidence that John B. was the equitable if not the legal owner of the land at the date of the release to his wife, and that he was in possession. The deed to Abel E. had been made, it is true, but John B. remained in possession and claimed to be in possession as owner. The question was, whether the deed to Abel was without consideration, fraudulent, and void as to the wife.
When a vendor remains in possession of the property after the conveyance, and it id claimed to be in fraud of creditors, his declarations as to the way he holds the possession are evidence on the trial of that issue. Blake v. White, 13 N.H. 267, 272, 273; Merrill v. Gould, 16 N.H. 347, 353, 354; Babb v. Clemson, 12 Serg. Rawle 328; Wilbur v. Strickland, 1 Rawle 458; Pomeroy v. Bailey, 43 N.H. 125, 126.
The question, whether the facts exist upon which the law allows leading questions to be put to a witness by the party calling him, is a question of fact to be determined at the trial. Hunt v. Haven, 56 N.H. 88.
Judgment on the verdict.
ALLEN, J., did not sit: the others concurred.