Bell v. Jones

17 N.H. 307

• Court: Superior Court of New Hampshire
• Decided: July 15, 1845
• Status: Published

Opinion

Parker, C. J.

We are of opinion that it was competent for the court to admit the affidavit to be annexed to the disclosure of the trustee in this case, and this notwithstanding the disclosure had been closed and the case submitted. The practice of allowing trustees to annex documents which are material to the case, to their disclosures, and thus making them part of the case, is not confined to such instruments as may serve to sustain the claim of a third person to property in the hands of the trustee, nor to a debt due from him for which he might otherwise be charged. Written instruments, and even the evidence of third persons respecting facts which are not within the knowledge of the trustee, may be equally important for the purpose of showing his own rights. It is within the discretion of the court, upon the consideration of the case, to judge how far such papers are authentic, how far they rightfully affect the case, and to determine whether they should be admitted. And this discretion is not limited in point of time, so long as the disclosure itself is under the control of the court, and may be opened for the addition of further statements by the trustee.

The documentary testimony is annexed to a disclosure for the purpose of supplying facts of which the trustee has not personal knowledge, and for the exhibition of the contents of written instruments to which he has occasion to refer. The affidavit annexed to the disclosure in this case is objectionable, because it overloads the record with matters not material to be thus stated. But it is not a cause for rejecting it entirely, that it repeats matters stated in the disclosure itself, and therefore not material to be put in the affidavit. If these matters were thus stated with a view of supporting the credit of the trustee, the stateihent of them was unnecessary; for his statements are to be taken as true unless the disclosure contradicts itself, or the matters appended to it contradict the statements contained in it.

There is no such discrepancy here between the statements of'the disclosure and those contained in the affidavit as can impair the effect and legal operation of the disclosure. There is little in the affidavit which was not in the disclosure in the first instance. The disclosure states a contract, by which the trustee received a " deed and gave two notes to the principal; that the contract was in fact conditional, and dependent upon the sanction of the son of the trustee ; that the son did not sanction it, and thereupon the deed was returned and one of the notes was given up, with a promise to give up the other, but that, instead of it, he had received the receipt of a third person, which shows that it was pledged ; and the trustee states that this pledge was made after the bargain had been given up and the deed returned to the principal. The disclosure shows the assent of the principal to the rescission of the contract, by the reception of the deed, the delivery up of one of the notes, and the promise to deliver the other, before this process was served. As between the principal and the trustee, then, nothing was due from the trustee on the service of the process. The subsequent pledge of the note, if it might render it valid against the trustee in the hands of the pledgee (which it seems not to be), could not make it a debt due the principal, for which the trustee is answerable in this process, even if the pledgee should relinquish any right he might suppose himself to possess. If the principal had retained the note, he could have had no title to recover it of the trustee after he had received back his deed to bo can-celled, in pursuance of a condition in the original contract. The consideration for which it was given failed from that time, whether he had in fact cancelled the deed or not. The cancellation or destruction of the deed was within the power of the principal, whenever he chose to exert it. The cancellation of the contract was perfected when the deed was delivered up, and the note was of no more validity in the hands of the principal than it would have possessed had the deed, instead of having' been delivered to the trustee, been delivered to a third person as an escrow, upon a like condition, and the bargain after-wards rescinded and the deed delivered back.

The fact that the deed has been cancelled being immaterial, and that being the only fact^not stated in the disclosure, the annexation of the affidavit is of no consequence, and the questions upon the interest of the principal and upon his credibility are not important.

We may add, however, (to exclude conclusions) that the principal debtor is not necessarily interested in the discharge of the trustee, so as render him prima facie incompetent as a witness for the trustee; 3 N. H. Rep. 400, Wallace v. Blanchard; and there are no facts in this ease which show such an interest. It does not appear that he is to gain or lose by the judgment for or against the trustee, or that the judgment will be evidence for or against him in another suit. 3 N. H. Rep. 399, Wallace v. Blanchard; 11 Mass. 334, Groves v. Brown. If an interest in fact existed, it seems that it would exclude the introduction of his affidavit as an exhibit in connection with the disclosure of the trustee.

Trustee discharged.