Jackson ex dem. Neilson v. M'Vey

Headnote

An attorney the plaintiff or be^ecompelled theíadeedde-scribed by the adverse party is in his possession or not, so as to authorize the other party, on his refusing to produce it, after notice for that purpose, to give parol evidence of its contents.

A declaration or confession by one of the lessors oí the plaintiff in ejectment, is evidence against 4)1 of them.

The evidence of a witness called to prove tne contents of a deed which the adverse party has in his possession, in Court, and has refused to produce, after notice for that purpose, is not to be rejected, because the witness, though he had often perused the deed, was unable to recollect any of the courses stated in the description of the premises contained in it; the object of the inquiry being to show that the premises in question were included in such deed : and by not producing the deed, when a ?ed for, a strong presumption arises against the party, that it does contain .the premise»,, as testified by the witness.

EJECTMENT for land in Wallkill, fried at the Orange circuit, in November, 1818, before Mr. Justice Van Ness. The plaintiff gave in evidence letters patent to P. V. B. Livingston and John Prevost,dated May 26, 1750, for 3,000

’acres of land ; and a release in fee for the same land from the patentees to James Alexander, dated May 28, 1750. It was proved that James Alexander died some time between the years Í 750 and 1760, leaving one son, William, after-wards Lord Stirling, who died in the spring of 1783, leaving two daughters, Catharine and Mary, two of the lessors of the plaintiff. ,A witness for the plaintiff proved that the premises in question were included within the bounds of the patent, which is only seventeen chains wide. The witness stated, on his cross-examination, that more than thirty years ago, Duncan Brown lived on the south ea*t part of the line near the river Wallkill, and the premises in «question, which were then in woods and unenclosed, claiming the farm he possessed as his own, having purchased it of James Alexander; and that D, B. died on the farm before the revolutionary war. The defendants’ counsel then offered to prove by the same witness, that Duncan Brown claimed the premises in question as included within the lands purchased by him of James Alexander, which was objected to by the plaintiffs counsel, and overruled by the judge.

The defendants proved that Duncan Brown died long before the revolutionary war, and that he lived near, but not upon the premises in question ; the country being then a wilderness. That Daniel MlVey, the husband of the defendant E. MiVey and father of the other two defendants, first entered upon and cleared a part of the premises in question, about twenty-eight years ago. The defendants’ counsel then gave notice to the plaintiff’s counsel to produce a deed given by James Alexander to Duncan Brown, dated about the 31st of May, 1750, for 993 acres of land, being then the farm on which D. iS. lived, and the lands adjoining; and it was proved, by John Cox, that about four years ago, he delivered up to Samuel W. Brown, one of the lessors of the plaintiff, that deed. It was objected, that the notice to produce the deed being given on the trial, was insufficient. The defendants’ counsel then called upon the plaintiff’s counsel to testify that the deed was then in Court and in his possession ; this was objected to, but the judge overruled the objection, deciding that it was not within the privilege of the counsel, to refuse to be a witness for that purpose, and

that the defendants having proved the deed to be last in the possession of the plaintiff, the counsel were bound to answer tbe question. The plaintiffs counsel then admitted that he had in his hands, a deed from James Alexander to Duncan Brown, for 993 acres of land, in lot No. 18 and 19, in the Minisink angle ; but refused to produce the deed. J. Cox then testified that he was the executor of John Brown, the son and executor of Duncan Brown, and that the (leed above mentioned by him had been, for many years, in his possession, and that he had often perused it, and always supposed the premises in question included in that deed. On being cross-esamined, he said, that he had a very imperfect recollection of the boundaries in the deed; nor could he, from his recollection, state a single course which it contained: That he supposed and thought, but did not know, that it included'the premises in question : that he had always supposed that the deed was for lot No. 18 in the Minisink angle, which is part of the Minisink patent. The defendants then offered to prove that D. B. in his life time, and his children since his death, had always claimed the premises as part cif the land conveyed to him by James Alexander; but this was overruled by the judge, unless the defendant first proved an actual possession of the premises by D, B. or his heirs. The defendants then called on the plaintiff pursuant to a previous notice, to produce a mortgage executed by Duncan Dove, lo Duncan Brown, for the premises in question, dated March 3, 1753 ; and on the plaintiff’s refusing to produce it, John (fox testified, that about four years ago, he delivered up the mortgage to Sanfiuel W. Brown, one of the lessors, and that he always understood and believed, that the mortgage covered the premises in question. On his cross-examination, he said, that he did not know from any survey or location, that the mortgage included the premises, nor had he any recollection of the boundaries contained in the mortgage. The defendants then offered to prove the declaration of S. W. B. one of the lessors, that he claimed the premises under that mortgage, which was objected toby the plaintiff’s counsel, but the judge decided that the evidence was admissible. The plaintiff then proposed to abandon the demise from S. W. Brown, and the judge decided that the defendants, notwith

standing the abandonment of such demise, would have a right to prove the declarations of S. W. Brown. James Brown, a witness for the defendants, then testified, that he was a grandson of Duncan Brozan, and had heard Samuel W. Brown say, that he claimed the premises, and expected to hold them under the -mortgage, and a quit claim deed.

The defendants offered a release in fee from Daniel Brown, one of the lessors, dated October -28, 1818, of all his right in the premises, to E. Ji/tVey, one of the defendants, which was allowed by the plaintiff to be received, without pleading the same puis darrein continuance. The judge was of opinion, that the plaintiff was entitled to recover, and that if the defendants had any title- under the deed from James Alexander to Duncan Brown, they must sue for a disclosure of the contents of that deed in the Court of Chancery. The Jury accordingly, found a verdict for the plaintiff.

A motion was made to set aside the verdict, and for a new trial: 1. Because evidence had been improperly excluded: 2. For the misdirection of the judge: 3. Because the verdict was against evidence.

He cited Jackson v. Bowen, 3 Caines, 358. 3 Johns. Cases, 109. Livingston v. Schultz, there cited. 9 Johns. Rep. 610 . 611. per Spencer J. Jackson v. Frier, 16 Johns. Rep. 163 . 4 Burr.~2484.