Jackson ex dem. Wood v. Harrow — 11 Johns. 434

Majority

p. 434

Jackson, ex dem. Wood, against Harrow, survivor of Morse.

NEW YORK,

October, 1814.

Headnote

cate aofCrth¡ execution ^'of a dmasterf°in chancery, or other officer, it is not necessatile officer per-«^subscribing whenYhe o“¿ \hat°it diiTnot appear that the master nessYrhifmade the proof; the court, on a motion for a new tiiat’the^certima'ster^stated satisfactory Yd pSlon6 °being thasubscribing witness.

vvhere the landlord unites with e the_ teing a suit ip slffide™4'1 to «auí6 uf'have atP°stUe ment1™?' the suit, and his possession is deemed to he the possession of the landlord.

Where a defendant serves copies of affidavits on a plaintiff, the originals of .which are on file, he can- ‘ not afterwards object to reading the copies in evidence, but they are to be considered as equivalent to office copies. • •

THIS was an action of ejectment, tried at the last Cortlandt circuit, before Mr. Justice Spencer.

^ *-he plaintiff produced a deed in fee, dated the 12th of February, 1808, from Thomas Burle, for the premises in , ^ r question. The defendant objected to the admission of the deed in evidence, upon the proof thereof before the master in chaneery, “ as it did not appear that the master knew the witness who made proof before him of the identity of the grantor.” But the objection was overruled by the judge, and the deed admit<.prl ‘,eUl

July, 1808, the lessor of the plaintiff made some improvement on the lot in question; and one Porter erected a log house ° on the lot, under the lessor, and one Bennet, afterwards, occupied it under the lessor; and when he left it, Morse, against whom this action was brought, entered and took possession °f the house and improvements, and held the same until his death, which was since the cause ivas at issue, and before the trial,

There was no evidence that Harrow, the other defendant, was ' in possession, at the commencement of the suit, or at any other time; and the defendant objected, that the plaintiff could not recover without showing him to have been in possession when the suit was commenced.

The lessor then gave in evidence, a certified copy of a ru"ie °f the court, of the 14th of May, 1813, by which the de- •

p. 435

fault and ejectment against the casual ejector, and subsequent proceedings, were ordered to be set aside, and Joseph Harrow be admitted a defendant with Morse, the tenant; and that Jomthan Armstrong, and the joint devise in which he was named, should be struck out of the declaration. It appeared that the defendant’s attorney had served the plaintiff’s attorney with a notice of the motion to set aside the default, &c. and to have Harrow made defendant with Morse, and with a copy of the affidavits of Harrow and Morse, on which the motion was founded. Harrow, in his affidavit, stated, that Morse held the premises in question under a lease from him, and that Morse was unable to make him satisfaction for his neglect, in not giving him notice ©f the commencement of the suit: and Morse also swore that he held the premises under a lease from Harrow. The plea and consent rule were also produced, and in which both Harrow and Morse appeared as defendants. Morse, afterwards, died, and his death was suggested on the record. The plaintiff contended that the affidavits showed that Harrow defended as landlord. The defendant objected to the admissibility of the affidavits in evidence; and that it did not appear, by the rule of court, that Harrow was admitted, otherwise than as a joint defendant with Morse. The judge overruled the objection, and, under his direction, the jury found a verdict for the plaintiff.

A motion was made to set aside the verdict, and for a new trial, on which the case was submitted to the court without argument.

delivered the opinion of the court. The objection to reading the deed in evidence was, that the master in chancery had not stated in his certificate of proof, that he knew the witness making the proof to be the subscribing witness to the deed. The act requires, (1 N. R. L. 369.) that the officer, taking the proof of a deed, must know the person making the proof, or have satisfactory evidence that he is a subscribing witness to the deed. In this case the master did not know the witness, but we are to intend that the certificate states that he had satisfactory evidence that he was the subscribing witness. The objection at the trial, that no deed could be proved, unless the officer taking the proof personally knew the subscribing witness, is clearly unfounded.

p. 436

Harrow had been admitted a co-defendant with Morse, upon jjjg own application, and by order of the court; and this is one of the methods pointed out by the statute for the landlord to adopt. He may join with the tenant in the defence; or in case the tenant refuses to appear and defend, judgment may be entered against the casual ejector, and the landlord will be permitted to enter into the consent rule, and a stay of execution be ordered on the judgment, until the title be tried. (1 N. R. L. 445.) When the landlord unites with the tenant in the defence, it is sufficient to prove the tenant to have been in possession at the time of the commencement of the ejectment, and his possession is to be deemed the possession of thé landlord.

The rule of court, authenticated by the clerk, was unobjectionable evidence to prove the fact that Harrow had been admitted a co-defendant. I perceive no objection to the admission of the affidavits. The originals were on file, and the copies offered in evidence, as between Harrow and the plaintiff were authenticated by Harrow himself. He served them as true copies on the plaintiff’s attorney, and cannot be listened to, in saying they are not true copies of the affidavits on which the motion was made, and the rule granted; the y were equivalent to office copies.

Motion denied.