Bell, J.
If this action depended upon the reputation of the horse in question, if the existence and character of that reputation were material to be proved, in order to support the action, perhaps the evidence on that subject would be admissible. But the declaration states the grievance to be the taking and carrying away of a horse of a certain value, and then useful and used for a special purpose, which was defeated by the defendant’s wrongful act, to the special damage of the' plaintiff. Nothing is said or implied in the declaration as to the reputation of the horse, and of itself it was merely immaterial whether the horse had any reputation, or what it was, in any respect. The evidence, then, must have been received as proof of something proper to be proved in the action, and we see nothing upon which such evidence could have any bearing, but the general value of the animal, or its particular value for the use interrupted by the acts of the defendants. The question, then, is reduced to this: Is reputation, common opinion, common report, common fame, evidence of the value of a horse, or of any fact upon which its value depends? [198]*198Would it be competent to ask a witness what is the reputed age, height, weight, speed, gentleness, soundness, and the like, of a horse; or for a witness to testify that he has generally heard the horse spoken of as a horse of sixteen hands high, six years old, of fine proportions, great beauty, unrivalled speed, &c., as the horse notices usually describe them ? It is enough to ask these questions to show that the evidence is not competent, and the verdict must be set aside on account of its admission.
The testimony of the medical witness was competent; it comes within ■ the case of Haven v. Wendell, 11 N. H. Rep. 112, a case which we regard as a leading case upon this part of the law of evidence.
The mortgage was made by Heath, the plaintiff, who was then a minor, and by Hal 1, who, if he had any title, had derived it from Heath.
In different counts, two takings are alleged at different times, and the evidence shows two distinct takings. After the first, the plaintiff retook the horse, and after the second, he commenced this action. At both these times he was a minor. Looking, then, at this transaction between these parties, without reference to the previous negotiations with Dennison, the questions arise,
Whether Heath could avoid his sale to Hall, and his mortgage to the defendant, West?
Whether he could do so before he became of full age himself?
Whether his act of regaining the horse, or bringing this suit for him, was sufficient to avoid the sale and mortgage ?
' It is clear that both the sale and the mortgage were voidable. Roberts v. Wiggin, 1 N. H. Rep. 73; 2 Kent’s Com. 234; and “ no one but the infant himself, or his legal representatives, can avoid his voidable deed or contract; for while living he ought to be the exclusive judge of the propriety of the exercise of a personal privilege intended for his benefit,- [199]*199and when dead those alone should interfere who legally represent him. Deeds, writings and parol contracts may be avoided during infancy, or after he is of age, by his dissent, entry, suit or plea, as the case may require.” 2 Kent’s Com. 237; Stafford v. Roof, 9 Cow. 626; Bool v. Mix, 17 Wend. 119; Shipman v. Horton, 17 Conn. 481.
Any act clearly showing an intention not to be bound by a contract or conveyance, is sufficient to avoid it. Thus it is said by Woodbury, J., in Roberts v. Wiggin, before cited? In general, an infant to avoid his deed must reenter on the land and oust the occupant, or if already in possession, must perform some act explicitly evincing his intention to defeat the conveyance. Many acts might suffice for this purpose, as an express and formal notice to the other party, or if sued himself in ejectment, interposing minority as a defence against the deed, or making a subsequent grant of the same premises.” And in the ease of a chattel, if an infant sell a chattel and do not deliver it with his own hand, (and no such delivery is pretended in this case,) he may consider the contract as void, and the purchaser a trespasser, if he take it. Perk. § 14, Dearborn v. Eastman, 4 N. H. Rep. 441.
In Stafford v. Roof ^before cited, it was held, that, a contract by an infant accompanied with delivery by his hand is voidable, not void, whether it be beneficial to him or not. But a manual' delivery seems in such case to be essential. None was shown in this case. There being no proof of actual manual delivery, the contract would seem to be void. The agreement to sell conferred no right upon the vendee to take. The mere agreement of the infant would not protect the vendee against an action of trespass for taking the horse. The taking would be tortious, and in itself a conversion.
The principle is understood to be settled, that where an infant purchases property either real or personal, and at the same time and as part of the same transaction, executes a mortgage of the same property to the seller, to secure a part [200]*200or all of the purchase money, he cannot avoid the mortgage, without at the same.time avoiding the entire contract, including the original purchase, the effect of which is to revest the title in the seller, as it was at first. Roberts v. Wiggin, 1 N. H. Rep. 73.
It remains then to be seen, whether the position of these parties is such, that the defendant, West, can avail himself of this principle. Heath purchased the horse of Dennison, and executed a mortgage to him to secure a part of the purchase money. Had the controversy arisen between Heath and Dennison, the case would be clear. If Dennison had in terms assigned his mortgage to West, the case would have been equally clear between Heath and West. The transaction .was not, in form, an assignment of the mortgage, and the question is, whether, consistently with recognized legal principles, it can be regarded as so far in substance an assignment as to give West the benefit of this very just and reasonable principle.
Dennison failed to get his pay, and called on Heath, either to pay the money or give up the , horse. There was talk Retween Heath and Hall, as to Hall’s paying for and owning one half of the horse, and it was agreed that Hall should sign a note for $75 to raise money to pay Dennison, and should keep the horse till spring, and then pay for and own half of him, if he elected to do so. Before this, Dennison had seen West, and told Heath and Hall that West would advance the money on their note and a mortgage of the horse. Dennison offered to assign his mortgage to West, but West said he did not want an assignment, he wanted a new mortgage. Heath and Hall made their note and mortgage to West, and Dennison destroyed the note he held, and cancelled his mortgage and delivered it to. West. The destruction of the note and cancelling the mortgage were equivalent to a discharge of the mortgage, and nothing more. The case does not find whether West paid the money to Dennison or to Heath, the witnesses disagreeing in their [201]*201statements on that point. It is not perhaps very material.
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Bell, J.
If this action depended upon the reputation of the horse in question, if the existence and character of that reputation were material to be proved, in order to support the action, perhaps the evidence on that subject would be admissible. But the declaration states the grievance to be the taking and carrying away of a horse of a certain value, and then useful and used for a special purpose, which was defeated by the defendant’s wrongful act, to the special damage of the' plaintiff. Nothing is said or implied in the declaration as to the reputation of the horse, and of itself it was merely immaterial whether the horse had any reputation, or what it was, in any respect. The evidence, then, must have been received as proof of something proper to be proved in the action, and we see nothing upon which such evidence could have any bearing, but the general value of the animal, or its particular value for the use interrupted by the acts of the defendants. The question, then, is reduced to this: Is reputation, common opinion, common report, common fame, evidence of the value of a horse, or of any fact upon which its value depends? [198]*198Would it be competent to ask a witness what is the reputed age, height, weight, speed, gentleness, soundness, and the like, of a horse; or for a witness to testify that he has generally heard the horse spoken of as a horse of sixteen hands high, six years old, of fine proportions, great beauty, unrivalled speed, &c., as the horse notices usually describe them ? It is enough to ask these questions to show that the evidence is not competent, and the verdict must be set aside on account of its admission.
The testimony of the medical witness was competent; it comes within ■ the case of Haven v. Wendell, 11 N. H. Rep. 112, a case which we regard as a leading case upon this part of the law of evidence.
The mortgage was made by Heath, the plaintiff, who was then a minor, and by Hal 1, who, if he had any title, had derived it from Heath.
In different counts, two takings are alleged at different times, and the evidence shows two distinct takings. After the first, the plaintiff retook the horse, and after the second, he commenced this action. At both these times he was a minor. Looking, then, at this transaction between these parties, without reference to the previous negotiations with Dennison, the questions arise,
Whether Heath could avoid his sale to Hall, and his mortgage to the defendant, West?
Whether he could do so before he became of full age himself?
Whether his act of regaining the horse, or bringing this suit for him, was sufficient to avoid the sale and mortgage ?
' It is clear that both the sale and the mortgage were voidable. Roberts v. Wiggin, 1 N. H. Rep. 73; 2 Kent’s Com. 234; and “ no one but the infant himself, or his legal representatives, can avoid his voidable deed or contract; for while living he ought to be the exclusive judge of the propriety of the exercise of a personal privilege intended for his benefit,- [199]*199and when dead those alone should interfere who legally represent him. Deeds, writings and parol contracts may be avoided during infancy, or after he is of age, by his dissent, entry, suit or plea, as the case may require.” 2 Kent’s Com. 237; Stafford v. Roof, 9 Cow. 626; Bool v. Mix, 17 Wend. 119; Shipman v. Horton, 17 Conn. 481.
Any act clearly showing an intention not to be bound by a contract or conveyance, is sufficient to avoid it. Thus it is said by Woodbury, J., in Roberts v. Wiggin, before cited? In general, an infant to avoid his deed must reenter on the land and oust the occupant, or if already in possession, must perform some act explicitly evincing his intention to defeat the conveyance. Many acts might suffice for this purpose, as an express and formal notice to the other party, or if sued himself in ejectment, interposing minority as a defence against the deed, or making a subsequent grant of the same premises.” And in the ease of a chattel, if an infant sell a chattel and do not deliver it with his own hand, (and no such delivery is pretended in this case,) he may consider the contract as void, and the purchaser a trespasser, if he take it. Perk. § 14, Dearborn v. Eastman, 4 N. H. Rep. 441.
In Stafford v. Roof ^before cited, it was held, that, a contract by an infant accompanied with delivery by his hand is voidable, not void, whether it be beneficial to him or not. But a manual' delivery seems in such case to be essential. None was shown in this case. There being no proof of actual manual delivery, the contract would seem to be void. The agreement to sell conferred no right upon the vendee to take. The mere agreement of the infant would not protect the vendee against an action of trespass for taking the horse. The taking would be tortious, and in itself a conversion.
The principle is understood to be settled, that where an infant purchases property either real or personal, and at the same time and as part of the same transaction, executes a mortgage of the same property to the seller, to secure a part [200]*200or all of the purchase money, he cannot avoid the mortgage, without at the same.time avoiding the entire contract, including the original purchase, the effect of which is to revest the title in the seller, as it was at first. Roberts v. Wiggin, 1 N. H. Rep. 73.
It remains then to be seen, whether the position of these parties is such, that the defendant, West, can avail himself of this principle. Heath purchased the horse of Dennison, and executed a mortgage to him to secure a part of the purchase money. Had the controversy arisen between Heath and Dennison, the case would be clear. If Dennison had in terms assigned his mortgage to West, the case would have been equally clear between Heath and West. The transaction .was not, in form, an assignment of the mortgage, and the question is, whether, consistently with recognized legal principles, it can be regarded as so far in substance an assignment as to give West the benefit of this very just and reasonable principle.
Dennison failed to get his pay, and called on Heath, either to pay the money or give up the , horse. There was talk Retween Heath and Hall, as to Hall’s paying for and owning one half of the horse, and it was agreed that Hall should sign a note for $75 to raise money to pay Dennison, and should keep the horse till spring, and then pay for and own half of him, if he elected to do so. Before this, Dennison had seen West, and told Heath and Hall that West would advance the money on their note and a mortgage of the horse. Dennison offered to assign his mortgage to West, but West said he did not want an assignment, he wanted a new mortgage. Heath and Hall made their note and mortgage to West, and Dennison destroyed the note he held, and cancelled his mortgage and delivered it to. West. The destruction of the note and cancelling the mortgage were equivalent to a discharge of the mortgage, and nothing more. The case does not find whether West paid the money to Dennison or to Heath, the witnesses disagreeing in their [201]*201statements on that point. It is not perhaps very material. The transaction may well enough be regarded in' the same light, if the fact was either way; the substance of it being, that "West advanced the money to pay the balance of Dennison’s mortgage, upon receiving the same kind of security upon the same property.
The principles laid down in the case of Robinson v. Leavitt, 7 N. H. Rep. 99, to which we are referred, are thus stated by Parker, J. “ There are cases in which a party, who has paid money due upon a mortgage, is entitled, for the purpose of effecting substantial justice, to be substituted in the place of the incumbrancer, and treated as the assignee of the mortgage, and is enabled to hold the land as if assignee, notwithstanding the mortgage itself has been cancelled, and the debt discharged. The true principle is, that where money-due on a mortgage is paid, it shall operate as a discharge of the mortgage, or in the nature of an assignment of it, substituting him who pays in the place of the mortgagee, as may best serve the purposes of justice, and the just intent of the parties.
Many cases state the rule in equity to be, that the incumbrance shall be kept on foot, or considered extinguished, or merged, according to the intent or the interest of the party paying the money; but the decisions themselves will generally be found in accordance with the principle above stated.
It makes no difference in either of these cases, whether the party on the payment took an assignment of the mortgage, or a release, or whether a discharge was made and the evidence of the debt cancelled. The debt itself may be held still to subsist, in him who paid the money as assignee, so far as it ought to subsist in the nature of a lien upon the land, and the mortgage is considered in force for his benefit, so far as he ought in justice to hold the land under it, if it had actually been assigned. Justice has been effected be- • tween parties in this mode by overlooking the form of the • transaction.”
[202]*202These principles are cited and approved in Rigney v. Lovejoy, 13 N. H. Rep. 252.
Assuming these principles to be correct, it seems apparent that the debt to Dennison was substantially paid by West, and that substantial justice will be promoted by regarding West as substituted in Dennison’s place, and treating him as^assignee of Dennison’s mortgage. The object of all parties was to give to West a valid security upon this horse, for the money he advanced to pay Dennison, and it is just to all parties to regard the Dennison mortgage as not discharged, but still subsisting for the benefit of West. It was clearly the interest of West to take an assignment of Dennison’s mortgage, because that could not be avoided without also avoiding Dennison’s sale. It was a casé where the parties acted under a mistake, the obvious effect of what they did being to destroy a good and effectual security, and • to give a writing in its stead, which was without any binding effect. The present, then, would seem to be a case, to which the principles of Robinson v. Leavitt should be applied; and We are accordingly of the opinion that West should be regarded as the assignee of Dennison’s interest in this animal, and entitled to take and sell the creature by virtue of the mortgage, and if that is considered as avoided, then the sale to Heath being at the same time avoided, West had a right to take and dispose of the animal under Dennison’s original title. On this point our views of the case differ from'those of the court below.
New trial granted.