1. It is unnecessary to consider the defendants' contention that the plaintiff is estopped by the decree in the equity proceeding to deny that her deed is fraudulent as to the defendants, for the decree itself expressly reserves to her the right to litigate the title to the locus.
2. The plaintiff's agreement to reconvey whenever Miss Bean repaid the money she borrowed, and in the meantime to permit her father to cut his firewood on the locus, constituted a secret trust (Watkins v. Arms,64 N.H. 99); but it does not necessarily follow from the fact that the trust existed when the conveyance was made that it existed when Head attached the land. If it had ceased to exist before the land was attached, the plaintiff's title is valid. Weeks v. Fowler, 71 N.H. 518, 520; Mandigo v. Healey, 69 N.H. 94, 95; Smyth v. Carlisle, 17 N.H. 417, 419; Oriental Bank v. Haskins, 3 Met. 332, 340. Whether or not the parties had terminated the trust before the land was attached is a question of fact, and was properly submitted to the jury, for it could be found that Miss Bean ceased to have any rights in the premises on November 14, 1902.
3. The fact that the jury found that the land was worth $250 more than the plaintiff paid for it is not equivalent to a finding that the conveyance was fraudulent as to creditors. Although the inadequacy of the consideration was relevant upon the issue of *Page 133 fraud, it was not conclusive. Norris v. Clark, 72 N.H. 442, 444; Eastman v. Plumer, 46 N.H. 464, 479; Washband v. Washband, 27 Conn. 424; 20 Cyc. 520. The defendants therefore take nothing by this finding, for it is not inconsistent with the general verdict for the plaintiff.
4. If it is conceded that the defendants' exception to the evidence is broad enough to include the objection they now make to it, — that there is nothing to show that Mead, with whom the witness talked, was their treasurer, — and that the evidence is merely an attorney's opinion of the effect of the decree in the equity proceeding, and for that reason irrelevant, it does not follow that the verdict should be disturbed. The record title to the property was in the plaintiff; the defendants could defeat her action only by showing that the deed from Miss Bean to her was fraudulent. As to that issue the defendants' knowledge of the record was immaterial, and the jury should have been so instructed at some time in the course of the trial. There can be no presumption, therefore, that the evidence produced the verdict. Consequently, the error incident to its admission furnishes no sufficient reason for setting aside the verdict; for to justify such a proceeding it must appear that the evidence was both immaterial and prejudicial. State v. Danforth, 73 N.H. 215; Smith v. Morrill, 71 N.H. 409; Rogers v. Kenrick, 63 N.H. 335. This conclusion is based on the proposition that the jury found that Mead, with whom the witness talked, was the defendants' treasurer. Of course, if the jury did not find that Mead was the treasurer, they could not consider the evidence for any purpose, and would have been so instructed if the defendants had so requested.
Exceptions overruled.
All concurred.