Majority
p. 362Brant, ex dem. Cuyler and others, against Livermore. ALBANY, August, 1813.
Headnote
law ofe'c Í gainst L. who lease from the sdribing’ the" premises as being in lot No.s.in acerap'pearecfthat lessor hatfmld that their ancestop ii&d made a will, thatThe^'ieL sors were not bound to produce the will, devises it con-thatedtheb'defendant, if he meant to bar the title of the was boínd^o lively ** a“ de" vise of the question: m In an actiont¿kent,bteas! from the aneestor, of the premises, as and occupied and paid rent tor them,as such, ped”“o 'show mbeswerenot in lot No. 8.
Evidence of a parol dis-tit™to real*1 property, othis inadmisc"
THIS was an action of ejectment for land in Greenwich, in Washington county, and was tried at the Washington circuit, in ^> 1812. The defendant took a lease of the premises (being lot No. 3. in a tract of land granted to William Kettle and Come-Hus Cuyler) from Henry Cuyler, on the 27th April, 1789, for 5 which was prolonged, by a memorandum on the lease, for ten years more. At the time of taking the lease the defend- . , - . ” ant was-m possession, and occupied and paid rent for the premises^ f° several years, to his landlord; but no rent was paid after the termination of the sixteen years. The present suit was brought since the termination, against the defendant, who continued to , hold possession. It was proved that Henry Cuyler, the original lessor, was dead, and his children and their heirs at law are the lessors of the plaintiff. It appeared that two of the lessors had e * * said that Henry Cuyler, deceased, had made his will. But the will was not produced, nor was it shown what devises it contained. The defendant insisted that as it appeared that Henry Cuyler, the original lessor, had died leaving a will, the plaintiff was bound 0 0 * * to show the devises contained in that will, before he could-recover in ^is action. But this- objection was overruled by the judge. The defendant then offered to prove that the premises in question were not included in lot No. 3. in the said tract; and that two of the lessors, since the commencement of the suit, had. disclaimed interest or ownership in the land; but this evidence was rejected by the ludge. J J '
. - , A verdsst was tound tor the plaintiff, subject to the opinion. of the court, on a case made, and which was submitted to the court without argument, °
The recovery was correct. Though Henry Pu!/Hr, ^le ancestor of the lessors of the plaintiff, may have made, a w;ii it ¿oes not follow that such will contained a devise of any . u part of his real estate, and particularly of the premises m question* The defendant was bound to show such a devise affirmatively,.if iie would bar the title of the heirs. The courts will never permit an heir to be disinherited by mere conjecture. Nor could the de» fendant be permitted to show that the premises lay out of lot No.
p. 363
3. after he had taken a lease of them from the ancestor as being within that lot, and had occupied and paid rent for them as such. The case of Jackson v. Whitford ( 2 Caines' Rep. 215 .) is in point, and the English rule is precisely the same. (2 Sch. & Lef. 72. 2 Campbell’s N. P. 12.) The court has also held that parol evidence of a disclaimer to a title to real property, otherwise valid, is inadmissible. ( 7 Johns. Rep. 186 .)
Judgment for the plaintiff.