Jackson ex dem. Watson v. Cris — 11 Johns. 437

Majority

p. 437

Jackson, ex dem. Watson, against Cris.

NEW YORK,

October, 1814.

Headnote

In ejectment, fendant den-from a„ who Be"t was held, „otgive ¡nev£ ^¡eanrca®¡*g 4’ea"osfóf the deed from B. could he prove change be-BWeea A" and

m^tgageftho’’ defendant7 n?‘ » biy 5a ejectment

THIS was an action of ejectment, brought to recover part of lot no. 85. in the Cayuga reservation, and was tried at the Cayuga circuit, in May, 1814, before Mr. Justice Platt.

The plaintiff gave in evidence a deed from Gideon Allen, jun. to John Richardson, for the whole lot, subject to a mortgage given by Allen to the people of the state of Nerv-York, for the payment of 1,475 dollars and 62 cents, in the year 1805, with interest, and dated December 20th, 1796. Exemplifications of a judgment recovered by Watson against John Richardson, which was docketed March 29th, 1797, and of a lest. fi. fa. issued thereon, and a sheriff’s deed to Watson of the premises, dated April 14th, 1801, were produced; and it was proved that the defendant was in possession when the declaration was served on him; and confessed, at the time of ser- . vice, that he held under and derived title from Gideon Allen, jun.

The defendant produced a deed, with covenants of warranty, dated June 5th, 1806,. from William Richardson and wife, to him, for the premises, subject to a mortgage by-Allen, before mentioned ; and then proved, that William Richardson went into possession in 1795, and held as owner, until 1806, when the defendant took possession; and that Richardson was the first who had taken possession after the land was abandoned by the Indians.

The defendant offered to prove, that before the Cayuga reservation was purchased of the state, in 1796, John Richardson told his mother, that he had conveyed the premises in question to his father, William Richardson; which evidence being overruled, the defendant offered to prove the loss of the deed, by proving that he could not find it on search ; that he called on William Richardson, who, on search, said that he could not find it, and had given it to the defendant, with the other evidences of title; and that William Richardson was old, and could not conveniently be produced; and that, before Watson's judgment against J. Richardson, and before the contract on which that judgment was founded, a parol exchange had Ibsen made between Jl and W, Richardson, possession taken.

p. 438

accordingly, and the premises recognised by J. Richardson to be the property of W. Richardson. All this evidence was also overruled.

The defendant then offered to give in evidence Allen’s mortgage to the state, by which, in case of failure of payment, he agreed to be absolutely barred of all equity of redemption, after the expiration of one year from the time of failure; and offered to prove, that the mortgage had been forfeited for non-payment of interest before the sheriff’s sale to the plaintiff’s lessor: but it appearing, by the records of the county of Cayuga, which were produced, that the mortgage had been paid by the defendant, and had been duly cancelled, the judge overruled this evidence; and, by his direction, the jury found a verdict for the plaintiff.

The case was submitted to the court, without argument*

delivered the opinion of the court. The evidence was properly overruled. There can be no question, that the confessions and declarations of John Richardson, and the parol exchange between Mm and William Richardson, could not be received as evidence of title. There was no evidence of the eodstence of a deed; and the declarations of the defendant and William Richardson, of ineffectual searches for it, could not avail in support of the defendant’s claim. What the effect of an outstanding and forfeited mortgage, with an agreement on the part of the mortgagor stated in it, like the one offered in evidence would be, cannot now come in question. The claim under the mortgage was extinguished. It had been paid off and cancelled ; and its operation was thereby effectually destroyed. That the payment was made, by the defendant does not vary the law on the subject.

Judgment for the plaintiff.