Majority
p. 394Jackson, ex. dem. Caldwell, against Hallenback
Headnote
M. having-given a warrantydeed for two lots of land toC. and afterwards,by another warranty deed, conveyed land adjoining to D. In an action of ejectment brought by C. against D. in which the question was, whether the south bounds of the two lots granted to C. did notextend so as to include the premises granted to D. M. is not a competent witness, as to the boundaries, for he is interested to support D.’s title.This was an action of ejectment for land in Oswegoi in the county of Broome. The cause was tried at the' Broome Circuit, the 4th of May, 1807, before Mr. Justice Tompkins. Both parties claimed under warranty deeds from one James M1 Master, who, it was admitted, had a good title. The plaintiff deduced his title from M1 Master, under a deed from him to one David Mf Master-, for lots No. 9 and 10, dated the 22d September, 1794. Some years after, James M’Master executed a deed with the usual covenants, for the premises in question, to one Brown, from whom the defendant derived title. The question was, as to the boundaries of the two lots mentioned in the deed to David M'Master. If the southern boundary of them extended to the Susquehannah river, then they included the premises in question, otherwise not. The defendant called James M’Master as a witness to prove that the lots did not extend to the river, but were bounded south by-the highway, or front street. He was objected to by the plaintiff’s counsel, as an interested wituess, but the objection being overruled by the judge, the jury found a verdict for the defendant. A motion for a new trial was made at the last term, on a case containing the above facts, which was submitted to the court without argument.
delivered the opinion of the court.
M‘Master, under whose, warranty deeds both parties claimed the. premises in question, was undoubtedly admitted as a witness, on the principle that he stood indifferent between them, and was equally liable to either, in case the one or the other prevailed in this action. If that had been his situation, the case of Ilderton v. Atkinson[2] would have justified his admission; but he was not in that situation, and his interest was undoubtedly in favour of the defendant who called him.
The question between the parties was whether the pri- or deed comprehended the premises in question or not.
p. 395
If it did, then the plaintiff had a right to recover. That the deed under which the defendant claimed, included the premises, was not questioned. If, then, M’Master could so locate the first deed as not to include the pré-' mises, he would avoid a responsibility on his warranty to the last grantee ; and the first grantee could never, in consequence of such location, have any remedy against him, because he would have failed, not for the want of title in. M’Master, the grantor, but as to the boundaries of the land granted. It is evident, therefore, that M’Master was interested in favour of the defendant; and as the verdict might be evidence against him, had the defendánt failed, and as he was, by his evidence, exonerating himself from all responsibility, he was an incompetent witness without a -release.[2] We are of opinion, therefore, that, there ought to be a new trial, with costs to abide the event of the suit.
New trial granted.
* 3 Term, 308. 4 Term, 580.
Footnotes
- * 7 Term. 480.