majority">Parker, C. J.

In order to settle the effect of the special finding in this case, it is necessary to consider the mode in which the case was presented to the jury.

The plea filed put in issue the title of the plaintiff under his mortgage. There was no question that the mortgage was duly executed, and that it conveyed originally a valid title in mortgage, to the plaintiff; but the defendant contended that the debt had been fully paid, and that the plaintiff, therefore, at the institution of his suit, had no valid title to the land. This was a matter of fact for the jury to settle. By the statute of this state, payment of the mortgage money, even after condition broken, defeats the mortgage. 1 N. H. *132Laws 486; 1 N. H. Rep. 332, Swett vs. Horn; 5 N. H. Rep. 256.

In the course of the trial before the jury, to ascertain whether the mortgage money had been paid, and thus to determine whether the plaintiff had any title, the only question in dispute between the parties seems at last to have been, whether a certain note of Daniel and Rhoda Fogg, which the plaintiff had received on account of the defendant, and passed to his credit in the general account between them, was in fact by special agreement, to be applied in payment of the mortgage debt. This question was submitted to the jury, and they found that there was no such agreement. This mode of trial, by a special question to the jury, must have been by the consent of the parties, perhaps on the suggestion of the court, for the purpose of simplifying the case. The technical issue was, whether the defendant had disseized the plaintiff; and the court, without the consent of the parties, could not have directed the jury to find any particular fact, only, which might have been involved in the issue. Upon this finding of the fact, actually in controversy, a general verdict was taken, finding the issue upon the record.

The result thus attained is the same that it would have been had the jury been directed that the only matter in controversy between the parties was, whether the note of D. and R. Fogg was received in payment of the mortgage debt; and if they found it was so, that they should return their verdict that the defendant did not disseize the plaintiff; but if the note was not to be thus applied in payment, the plaintiff had lawfully passed it to the credit of the defendant, in their general account, and that the verdict in that case must be that the defendant did disseize the plaintiff in manner and form as he had alleged.

Had the trial taken this shape, we think the court, upon the hearing in chancery, to ascertain the amount due, must go into evidence independent of the finding of the jury; and could not take official notice of the fact that the jury, in com*133ing to their conclusion that the defendant was guilty of a disseizin, must have been of opinion that the note of D. and R. Fogg was not received specially in payment of the mortgage debt. The verdict would settle nothing but the fact of the disseizin. The court, to be sure, would know that the jury found, or ought to have found, that there was no special application of the payment to the mortgage ; but they would have this knowledge only by inference, from the fact that nothing else had been in dispute. If the matter in controversy, instead of being confined to this simple fact, had involved several controverted facts ; as, for instance, if the defendant had alleged that the mortgage had been fully discharged by payments made at several different times, and the plaintiff had controverted all those alleged payments ; the court could not have inferred, from a general verdict, that the jury had found any particular sum to be due, for they might well have found some of the payments alleged and not others. In a case of that character, it would be very clear that the court, upon the hearing in chancery, could not enquire of the jury how many of the payments they found to have been made, and what sum they thought to be due, and then render a conditional judgment upon that information. And the fact that only one payment was alleged, can make rio difference in the principle. The court could no more act upon an inference drawn from the finding of the jury, than they could act upon the answers of the jury to a question put to them in the case last supposed.

And we are of opinion that these considerations indicate, conclusively, that the special finding of the jury in this case cannot be received in evidence on the hearing in chancery. It was not of itself a verdict, but an answer to a question, taken by consent, as the foundation of a verdict, for the convenient transaction of business; and no greater force or effect should be given to it than would have been given to the inference which might have been drawn upon the return of a general verdict. That proceeding was not had with a *134view to the hearing in chancery. The verdict settles the fact that the plaintiff has a title by mortgage, but the hearing in chancery is open to any evidence which may show the amount due.

Citation profile

How this case has been treated — in progress