¶1Under the statute of this State it is necessary, to the validity of the mortgage, as against third persons, not only that it should be executed by the grant- or, but that it should be attested by two witnesses. Rundlett v. Hodgman, 16 N. H. Rep. 239.
¶2And in order to prove the deed, in default of the evidence of at least one of the subscribing witnesses, it is •necessary to prove the hand-writing of the witnesses, as well as that of the grantor, unless the party shows that he is unable to do so. 6 N. H. Rep. 567, Farnsworth v. Briggs, and authorities cited. Whether proof of the valid execution of a deed, under the statute, can be made without some proof of the hand-writing of the witnesses, or whether evidence may be received in such case of the inability of the party to make that proof, as it may be in case of instruments which are witnessed, but which ai’e not required by law to be witnessed, we need not inquire, as the plaintiff neither proved the hand-writing of Frederick Perley, nor gave any evidence of his inability to prove it; and the same remark applies to the proof in relation to the note which was produced. The plaintiff introduced ample evidence to show that he could, not obtain the testimony of Perley; but it did not appear that the witness, who was acquainted with him, and who testified to his domicil and his death, was not acquainted with his handwriting also.
¶3According to many of -the authorities, the proof of his hand-writing would have been sufficient proof of the note, without proof of the signature of the maker. See opinion of Richardson, C. J., 6 N. H. Rep. 562. Valentine v. Pike, 22 Pick. 90, in which the court held, that upon a cause shown for the admission of secondary evidence, it is competent', in the first instance, to offer proof of the handwriting of the party executing the instrument, is not in *617accordance with tbe general current of the authorities; and however reasonable the doctrine may be in relation to instruments where no subscribing witness is necessary to render them valid, such proof by no means proves all to have been done which the statute requires in the execution. of deeds of land, nor shows an inability to furnish the evidence.
¶4If the plaintiff had introduced evidence to show that the deed from Cyrus Ingalls to the defendant had been delivered and accepted by the grantee, the recognition of the mortgage in that deed, with the clause providing that the defendant should pay the debt, would be ample proof of the existence of the mortgage, without any other evidence of its execution. 6 Peters 611, Crane v. Lessee of Morris; 6 Ham. (Ohio) 187, Hart v. Johnson; 2 U. S. Dig. 202, pl. 83; 7 Man. & Grang. (49 E. C. L. R.) 994, Beckett v. Bradley; 1 Greenl. Ev. 30, sec. 24; 4 Binney 231, Penrose v. Griffith; Ib. 314, Garwood v. Dennis; Com. Dig. Ev., B. 5; 3 Johns. Cas. 174, Colden v. Cornell. There are numerous other authorities to the same effect.
¶5Notice having been given to the defendant to produce the original of the deed to himself, without effect, the production of an office-copy would have been sufficient evidence of its execution and delivery, if it had appeared by any evidence that the original had ever been in his possession. But it is not to be presumed that the deed was delivered because it was recorded. Hayes v. Davis, ante 600; and the plaintiff offered no other proof to show that fact. The proof by the defendant, that he entered on the land in 1841 or 1842, might have been sufficient primd facie for the purpose, were it not that it appears that about a year before that entry the defendant had procured the title upon which he relies in this case under the sale for taxes, and claims to have entered under that title.
¶6The jury have found the sale for taxes collusive, but *618that finding is based, among other things, upon the admission of the deed in evidence, to show title in the plaintiff. (
¶7As the entry of the defendant was prior to the entry of Montgomery in behalf of the plaintiff, he cannot sustain this action solely upon the evidence of that entry. The evidence of the deeds failing, the entry of the defendant, claiming title, is, as the case now stands, the earlier evidence of title as between these parties.
¶8There must, therefore, be a
¶9New trial.