Jackson ex dem. Bates v. Lawson — 15 Johns. 539

Majority

p. 539

Jackson, ex dem. Bates, against Lawson.

Headnote

¿ dev.!ses fa™ to his-wife, during her widowhood, remainder to his claiming under fandeefrom «on^o/eject-against vidow, and mother person, in which he recovers on proof of the existence and contents of the deed from J. which was lost, or otherwise could not be produced, and goes into possession under this recovery. After the death of the widow, C. claiming as the grantee of some of tne devisees in remainder of J., brings ait action of ejectment against B.t and on the trial, B, produces the record of the former recovery by him, and offers evidence of what had been sworn to, on the trial, in that suit, by a witness since deceased, whose testimony went to establish the existence of the deed from A. to B. Held, that the evidence was admissible : that the widow, and the remainder men, from whom C. derived his title, and who all claimed under the will of A., were privies in estate ; and that the evidence of a deceased witness, in a former suit, is testimony, not only where the same point in issue afterwards arises between the same parties, but also for A, against persons standing in the relation of privies in blood, privies in estate, or privies in law,

THIS was an action of ejectment for a farm in Poitghkeepsie, in the county of Dutchess. The cause was tried * 7 J before Mr. J. Van Ness, at the Dutchess circuit, in August, „ A .._ 1817.

On the trial, John C. Brower, a witness on the part of the plaintiff, testified that he knew William Lawson, the father of Peter Lawson, and the grandfather of the defendant; that W. Lawson died in possession of the premises in ques

p. 540

tian in July, 1791 ; that the defendant was in possession of about fifty or sixty acres of land, the premises in question, which the defendant recovered in an action of ejectment against the witness, and Elizabeth Lawson, widow of W. Lawson, and that he went into possession by virtue of that recovery, seventeen or eighteen years before the trial, and had continued in possession ever since ; that when W. Lawson died, he left his widow Elizabeth, who is since dead, in possession ; and that Peter Lawson had possessed the farm for a long time previous to his death, and the witness always understood that he bought the farm of his father, W. Lawson.

William Lawson, by his will, dated 6 th of May, 1790, devised his real estate, as follows : “ It is my will that my daughter Catherine, the wife of Matthew Boyce ; Ippea, the wife of Benjamin Phillips ; the heirs of Gertrude and William Jaycocks, deceased; the heirs of Annatje and John Ferdun, deceased; my son Simeon Lawson ; the heirs of my son Johannes Lawson, deceased ; (that I, in the life time of my son Peter, have given him his portion, and that his heirs have no demand on my estate;) the rest of the above named to be my lawful heirs after my decease. Notwithstanding, my wife Elizabeth is to remain in full possession of all my estate, real and personal, during her widowhood.”

The plaintiff, also, gave in evidence the following deeds to his lessor: A deed from John Velie and Catherine his wife, one of the children of Annatje, dated December 16th, 1791, which was acknowledged by the wife only, but was admitted to be read, subject to all objections. A deed from , Simeon Lawson, dated 14th November, 1791 ; and a deed of the same date from Thomas W. Jaycocks, one of the children of Gertrude. These deeds purported to convey all the right of the grantors in the farm of W. Lawson, of « hich the premises in question formed a part,

Matthew Lawson, a witness on the part of the defendant, testified that Peter Lawson, who died before the revolutionary war, and before his father William, leaving the defendant his heir at law, bought the farm of his father, and that after the death of Peter, William told the witness that he had sold the land to Peter, and since his death had got

p. 541

back the deed. He also stated, that Peter died in possession. Another witness testified, that Peter bought the land of his father in the spring, and died about seed-time, the same year, in possession, and that his family continued in possession a year or two after his death. The deposition of Simeon Lawson, one of the sons of W. Lawson, taken under the act to perpetuate testimony, was also read on the part of the defendant, which corroborated the testimony of the other witnesses on the part of the defendant, and stated that the witness, during the life of Peter, had heard his father say, that he had sold the south half of his farm in Poughkeepsie to Peter, and had given him a deed.

The defendant then gave in evidence the record of a recovery in an action of ejectment in this court, for the laud in question, wherein James Jackson, on the demise of John Lawson, the now defendant, was plaintiff, and Elizabeth Lawson, the widow of W. Lawson, and John Brower, were defendants, and which cause was tried on the 14th of June, 1797, before Morgan Lewis, Esq. then one of the Justices of this court, and judgment was signed the 4th of August, 1797. The defendant then offered to prove that the lessor of the plaintiff was present at the trial in that suit; that he was the agent of E. Lawson, in preparing the defence, conducting the trial, and examining and cross-examining the witnesses ; and that Peter Dubois, who is since dead, was sworn as a witness at that trial, on the part of the then plaintiff, and testified, in the hearing and presence of the lessor in this suit, that he surveyed the premises in question on the 14th of February, 1769, at the request of,P. Lawson, and his father William, and drew a deed in fee simple from William to Peter, and a bond from Peter to William for the purchase money, and that William told the witness, some months afterwards, that he had conveyed the premises to his son, and was afraid that he would not be able to pay the residue of the consideration money. This testimony was objected to, and excluded by the Judge. The jury found a verdict for the plaintiff, which the defendant now moved to set aside, and for a new trial, on the grounds, 1. That the verdict was contrary to evidence; and 2. That the judge had rejected proper testimony.

p. 542

Oakley, for the defendant,

contended, that the defendant, having shown a prior possession in his father, it was evidence of right, and ought to prevail against a subsequent possession of W. L. the elder, especially where á descent had been cast, as in this case. (Smith v. Lorillard, 10 Johns. Rep. 338 —356.) Besides, there was sufficient evidence of a conveyance from W. L. the elder, to P. L. the father of the defendant. If there could be any doubt on this point, that doubt would have been removed by the evidence offered of whatZ)Mbois,a witness, since deceased, swore on a former trial of the action of ejectment against the widow of W. L. and J. B. The lessor of the plaintiff was present at that trial, and examined the witnesses. The admission of this species of evidence is a departure from the strict technical rules of law, and allowed from necessity. (Jackson v. Bailey, 2 Johns. Rep. 17 . 20. Taylor v. Brown, T. Raym. 170.) In Calhoun’s Lessee v. Dunning, (4 Dallas, 120.) it was objected that a record of an action of trespass, brought by the defendant against one Caruthers, could not be read in evidence, as it was not between the same parties ; but the objection was overruled, on the ground that Caruthers was the person really interested as the owner of the land ; and that Calhoun, the lessor, was á mere trustee for him.

A verdict for or against a lessee, is evidence for or against him in reversion; and a verdict for him in remainder, is evidence against a subsequent remainder man ; for he claims by the same deed. (Pyke v. Crouch, 1 Ld. Raym. 730. Com. Dig. Evidence, A. 5. Vin. Abr. Evidence, T. b. pl. 4. In the case before the court, there is the same privity of interest.

P. Ruggles, contra,

contended, that if the defendant claimed under a conveyance from W. L. it was the same source of title as that of the lessor of the plaintiff, and he could not defend on the ground of his prior possession, which could not be adverse. To admit the paroi declarations of W. L., made 25 years ago, would be most dangerous, unless some account was given of the deed. («7ackson v. Shearman, 6 Johns. Rep. 19 . 21.)

Again; evidence of what a witness, since deceased,

p. 543

swore at a former trial, is not admissible, unless in an actian between the same parties. (Jackson, ex. dem. Schuyler, v. Vedder, 6 Johns. Rep. 8 . 14.) The only exception to this rule is the case of a remainder man.

delivered the opinion of the court. The first question I shall consider, is, whether the testimony given by Dubois, in the action of ejectment brought by the present defendant against the widow of William Lawson and Brower, and in which the then plaintiff had judgment in 1797, was properly rejected or not. By the will of William Lawson, he devised all his estate to his wife during her widowhood, with remainder to certain of his children and grand children, part of whose estate the now lessor of the plaintiff purchased in 1791. Both the widow of William Lawson, and the lessor of the plaintiff, thus claim under the same will; and I am inclined to think, that there is such a privity of estate between them, that the verdict in that case was, for certain purposes, evidence (though not conclusive) in this. It was evidence, at least, to lay the foundation for admitting the testimony given by Dubois, more especially as the lessor of the plaintiff, in point of fact, had notice of, and defended the former ejectment; was present at the trial, and had an opportunity of cross-examining the witnesses, though I lay no particular stress on these latter facts. The estate devised to the widow during her widowhood, and the remainder over, constitute but one estate carved out of the same inheritance, created and subsisting together, the one in possession, the other in expectancy. An estate in remainder is a present interest, though to be enjoyed in future, and is capable of being aliened, devised, and otherwise disposed of, in the same manner as an estate in possession.' The possession of the widow was, for certain purposes, the possession of the remainder men, and the entry of the present defendant under the recovery in the ejectment, was a prejudice to those in remainder, for, in consequence of it, the estate in remainder has become a right in action only. The lessor of the plaintiff had an interest in defeating the recovery, and his right was so interwoven with that of the widow, that the evidence of

p. 544

Dubois affected the one almost equally with the other. My a£¿enf¡on was not called to this view of the subject at the trial; and the fact, that the present lessor of the plaintiff had purchased part of the estate in remainder before the trial in 1797, was overlooked; and the counsel for the defendant put the admissibility of the testimony offered, on the ground that the lessor of the plaintiff was the agent of the widow, and present at the trial. It was held hy Ch. J. Holt, “ that if several estates in remainder be limited in a deed, and one of the.remainder men obtains a verdict for him, in an action brought against him for the same land, that verdict may be given in evidence for the subsequent, remainder man in an action brought against him for the same land, though he does not claim any estate under the first remainder man, because they all claim under the same deed.'1'1 Pike v. Crouch, (1 Lord Raym. 730.)

If the verdict in the former ejectment was admissible on the trial of this suit, by reason that the tenant for life and the remainder men are privies in estate, it follows, that the evidence given in the first suit by a deceased witness, is also admissible. The rule is, that such evidence is proper, not only when the point in issue is the same in a subsequent suit between the same parties, but also for or against persons standing in the relation of privies in blood, privies in estate, or privies in law. On this ground, the defendant is entitled to a new trial; though independently of this, I think a new trial ought to be granted on the other ground taken in the argument, that the verdict is against the weight of evidence. The proof of a conveyance by William Lawson, in his lifetime, to his son Peter, is very clear and satisfactory.

New trial granted, with costs to abide the event*

END 0F OCTOBER TERM¿.