Jackson ex dem. Brown v. M'Vey — 15 Johns. 234

Majority

p. 234

Jackson, ex dem. Brown and others, against M'Vey.

Headnote

Where ape¿ reíationtoiaiíd andexecpísís’trty\“ permits anoupon ^and ocheP7ore those der him can-an* actionta'of agdnsTntsuch deciarktionshls claiming the ri|h^areinadport of the acdenceof title; tionsbeinl'c'yi"relationto the •possession.

THIS was an actioh of ejectment for the recovery of lands in the town of Wallkill, in the county of Orange. The cause was tried before Mr. J. Platt, at the Orange circuit, ¡n September, 1816.

The lessors of the plaintiff claimed as the children and heirs at ]aw of William Brown, deceased, who was the son of John Brown, deceased, and produced a deed of quit-claim, in fee, from John Brown to William Brown, for the premises in question, dated the 13th of February, 1801. A witness on the part of the plaintiff stated that John Brown, in his lifetime, claimed the land as owner thereof, as the witness supposed, because he threatened to prosecute any person trespassing on it, and did prosecute some persons; that Darnel M‘ Fey, the father of the defendant, entered on the land about six and twenty years before the trial, by permission of John Brown, and built a house with his consent, and that he and his family always said that they held the land under John Brown. On his cross-examination the witness stated, that John Brown was the executor of Duncan Brown, his,father; that the witness understood from John Brown that the lands in question had been sold by Duncan Brown to Duncan Done, who had given a mortgage to secure the ■purchase money. 'The witness further stated, that John '.Brown claimed the land until the mortgage was paid; and if mot paid, as the witnes" supposed, he claimed the land ras his own ; and that the eldest son of Duncan Brown was Daniel-Brown, who died long before the revolutionary war, leaving a son and several daughters. The-counsel for the -plaintiff then offered to prove, by other witnesses, that John -Browñ, in -his lifetime, both .before and after the entry of , M‘ Fey, in his conversations with various other persons, = claimed the land as absolute owner. This testimony being -objected to, was overruled by the judge. A mortgage from ¡Duncan -Done.to.Duncan Brown and his heirs, was produced ■mn the part of the plaintiff This mortgage was of 206

p. 235

acres of land, including the premises in question, and was dated the 23d of March, 1753, conditioned for the payment of 80/. on the 22d of March following, with interest. No evidence was offered on the part of the defendant. _

The judge charged the jury, that if they believed from the evidence, that John Brown entered upon the land as executor of his father, and, as such, permitted the defendant’s father to enter, then the lessors of the plaintiff acquired no right to the land by descent, nor by the conveyance from John Brown, and they should find for the defendant. But if they believed that John Brown leased the land, as proprietor, they should find for the plaintiff. The jury found a verdict for the defendant, which the plaintiff now moved to set aside, and for a new trial.

W. A. Duer, for the plaintiff.

1. The evidence of the declarations of J. Brown was admissible to show with what intent he entered, and in what character he held the possession, The case of Jackson, ex dem. Youngs, v. Vredenbergh, ( 1 Johns. Rep. 159 .) is an authority in point.

2. The verdict was clearly against evidence. (Here the counsel entered into an examination of the testimony given at the trial.)

Betts, contra.

If the declarations of J. Brown are admitted for any purpose, it must be in proof of the plaintiff’s right; and it would follow from the argument of the plaintiff’s counsel, that a party might recover or make out a title on the strength of his own mere assertions. This case is very distinguishable from that of Jackson v. Vredenbergh. That was a case of adverse possession, and the declarations of the party were connected with marked acts of ownership which showed the character in which she entered. In Waring v. Warren, ( 1 Johns. Rep. 339 —342.) the court say, that the declarations of the party are not admissible in evidence, being interested to maintain the possession and support his title.

2. When evidence is given on both sides, the court w not grant a new trial on the ground that the verdie against evidence. The jury were warranted by the

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dence to presume that J. Brown entered on the land as executor. (En gland v. Slade, 4 Term Rep. 682. Hammond v. Wadham, 6 Mass. Rep. 353 . Jackson v. Sternbergh, 1 Caines, 163. Defonclear v. Shottenkirk, 3 Johns. Rep. 170 .)

Duer, in reply,

said, there could be no doubt of the general rule that the declarations of a party were not evidence to support his title. The question left to the jury was not whether J. Brown had title, about which there was no doubt, but whether he claimed to be owner, and with what intent, or in what character he entered and held the possession; whether as owner or as executor of D. Brown. Evidence of his declarations was offered, not to prove that he had, but that he claimed to have title. If, in leasing the premises to the defendant, J. Brown acted as owner, no matter whether he was so or not, the lessors of the plaintiff are entitled to recover. The defendant cannot call in question the validity of the title under which he entered.

Again ; J. Brown could not have held as executor. It is not a mortgage for years, but in fee, and on the death of D. Brown, the legal estate descended to his heirs at law. But admitting that he held as a trustee for the heirs or representatives of D. Brown, can the defendant be allowed,to avail himself of that fact, as a defence in this suit ? If he acted as trustee, the lessors of the plaintiff, if they recovered, would still hold as trustees, and might be compelled by a court of equity to convey to the cestuy que trust, whose rights cannot be impaired by the recovery of the plaintiff in this suit. The defendant ought not to be allowed to set up the rights of the cestuy que trust as an outstanding title.

delivered the opinion of the court. The plaintiff moves for a new trial on two grounds, 1st. That the verdict was against the weight of evidence : 2d. That the judge improperly excluded evidence offered on the part of the plaintiff.

The lessors of the plaintiff claimed the premises in question as heirs at law of William Brown, deceased, who was the son of John Brown, and the question submitted to the jury was, whether the ownership set up by John Brown was.

p. 237

in his own right, or as executor of his father, Duncan Brown. It appeared in evidence that Daniel M'Vey, the defendant’s father, went into possession under and with the permission of John Brown. The right to recover, as put to the jury, depended on the question, whether John Brown, in this transaction, was acting in his own right, or as executor of his father. The jury decided that he was acting in the latter character; and the verdict is supported by the weight of evidence.

The case was submitted to the jury upon the plaintiff’s own evidence ; no testimony was offered on the part of the defendant. From the plaintiff’s witness it appeared that John Brown acknowledged that the lands in question had been sold by Duncan Brown, his father, to one Duncan Dove, who had given a mortgage to secure the purchase money. This mortgage appears to have been given in the year 1753, to secure the payment of 80l. in one year thereafter. It was proved that John Brown said he claimed the land until the mortgage was paid: this shows very clearly that he was acting as executor; and this conclusion is much strengthened by the fact that he was jnot the heir at law of his father. His brother, Daniel, was the eldest son, and there is nothing in the case affording any grounds to infer that John Brown had acquired any right from his father, except what grew out of his executorship. When all that he has done in relation to the premises is consistent with, and within the scope of his duty, as executor, it is unreasonable to conclude that he acted in any other capacity, especially as no colour for any other claim is shown, independent of his own declarations. These declarations were not admissible as evidence of title : this is the settled doctrine of this court. In Jackson v. Shearman, ( 6 Johns. Rep. 21 .) the court say that the acknowledgments of a party as to title, are a dangerous species of evidence, and though good to support a tenancy, or to satisfy doubts in cases of possession, they ought not to be received as evidence of title. The proof offered was, that John Brown had, in conversation with several persons, both before and after M'Vey’s entry, claimed the land as absolute owner. These were not declarations made by him whilst in possession, ayd to show the character of his possessions

p. 238

but declarations as to the title, and as such they were inadmissible. The motion for a new trial must, accordingly, be denied.

Motion refused.