Jackson ex dem. Griswold v. Bard — 4 Johns. 230

Majority

p. 230

Jackson, ex dem. Griswold and another, against Bard.

NEW-YORK,

May, 1809.

Headnote

Where Jl. went into possession of land under an agreement made with B. for the purchase ; and C. afterwards took possession under an agreement with Ji. for the purchase, the possession of C. was held not to he adverse to the title of JB.

A feme covert who had executed a deed with her husband, was held a competent witness to prove that the deed had been antedated.

The declarations of a person in the possession of land as to his title, are admissible evidence against him, and all persons claiming under him.

A deed may in its operation be made to relate back to the time of the contract tor the purchase of the laiicle as between the same parties, and for the furtherance of solas’ t<f ”d°o wrong to stemgers.

THIS was an action of ejectment for land in Philips- town, .in the county of Dutchess. The cause was tried at the Dutchess circuit, before Mr. Justice Van Ness, in September, 1808.

The plaintiff gave in evidence a mortgage from Samuel Dickenson to Roger Barton, dated the 8th March, 1779, for 160 acres of land, including the premises in question, being one quarter of an acre, made to secure the payment of 865 dollars, in two years.

R. Barton, the mortgagee, was offered as a witness on the part of the plaintiff, and was objected to, on the ground of his having conveyed the premises ; but it appearing that the deed contained no covenants whatever to the purchaser, the objection was repelled, and the witness admitted. He testified, that about 10 months before the mortgage was given, Dickenson and one Harris entered into articles of-agreement with him for the purchase of the mortgaged premises. 7 he deed from the witness to Dickenson, and the mortgage to the witness, were executed at the same time. The plaintiff then gave in evidence a deed from Barton to the lessors, for the mortgaged premises, pursuant to a sale thereof, made according to the statute. John Barton, a witness for the plaintiff, testified, that he had r 7 7 known the premises 40 years, and deduced the possession * — down to Roger Barton. He said, that one Benjamin Smith . . - . . . . w . . „ came into possession ot the premises in 1798, by virtue of a purchase, by articles of agreement, made with Dickenson, t0 whom he paid the sum of 25 dollars, and built a house on the land, and lived thereon until after May, 1790. The witness was present at the time of the sale of the mortgaged premises, and one Linzey, then present, and who was in possession of the premises, forbade the sale, and told Barton and Griszvold, that he had a deed from Smith,

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On this evidence, the defendant’s counsel contended, that there was such an adverse possession, at the time of the mortgage, that the property could not pass by that deed. But the judge overruled the objection.

The defendant also gave in evidence a deed of the premises from Dickenson and his wife to Benjamin Smith, dated 11th March, 1799; a deed for the same, dated the 2d October, 1801, from Smith to Peter Linzey ; and a deed, dated 1st May, 1806, from Linzey to the defendant.

The plaintiff’s counsel endeavoured to show, that the first deed was antedated, and that it was apparent that it was written on an erasure. The deed was shown to the jury-

Eleanor Gallaway, who was the wife of Dickenson, and had executed the deed to Smith, was offered as a witness, to prove that the deed was antedated. She was objected to as incompetent, but the objection was overruled. She said that she believed the deed to be the same she had executed, but did not certainly know, as she could not write nor readj that she never executed but one deed with her husband to Smith. The witness was asked what she heard Smith say about his title, while he was in possession, and before he sold the premises ; an objection was made to the question, but the judge permitted the inquiry to be made. The witness stated that Smith, after the death of Dickenson, wished her to take the land, as Barton claimed it, and he was afraid would hold it.

Roger Barton, though objected to, was also examined, as to the confessions of Smith. He testified, that in a conversation with Smith relative to the mortgage and the deed, Smith asked Barton about antedating the deed, and wished him to sign it; that he understood the mortgage was of a prior date to the deed; that Dickenson was dead, and he wished to have no further contention, and offered the witness 25 dollars to sign his name to the deed.

The subscribing witnesses to the deed who were called, could not recollect the precise time of its execution, but

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only mentioned circumstances, to induce an opinion that it was subsequent to the mortgage;

The judge charged the jury, that from the face of the deed from Dickenson to Smith, he thought it apparent that the date had been written on an erasure, and that circumstance created a suspicion that it was antedated; that if the deed was executed after the 19th March, 1799, though dated before, it passed no title sufficient to bar the plaintiff’s right to recover ; that the weight of evidence arising from the circumstances mentioned by the witnesses to fix the time of the execution and delivery of the deed, was against the defendant. The jury found a verdict for the plaintiff.

Fisk, for the defendant,

moved to set aside the verdict. He contended for the following points:

1. There was an adverse possession in Smith at the time of giving the mortgage, so as to prevent the premises from passing by the mortgage.

2. Eleanor Gallaway ought not to have been admitted as a witness, to prove that the deed had been antedated.

3. That the evidence of Smith's declaration about his title was inadmissible.

4. That the deed was not antedated.

5. That the date was immaterial, and that the operation of the deed would relate to the time when Dickenson could pass the fee of the land.^[1]

6. That the charge of the judge was not warranted by the evidence, and that the verdict was against evidence.

J. Tallmadge, contra.

He cited 4 East, 477. 1 Black. Rep. 365 . 4 Burr. 2225. 3 Term Rep. 34. 36. 1 Johns. Rep. 343 . 1 Esp. Cases, 458. 2 Term Rep. 53. 1 Str. 664. 4 Cruise, 355. Cowp. 712.

delivered the opinion of the court. I shall briefly examine the several questions raised on the argument, in the order in which they were made.

1. The possession of Smith could not be considered adverse to Barton, so as to prevent the operation of the mortgage under which the lessors of the plaintiff make title, The agreement between Barton, and Dickenson and Harris, for the purchase of the 160 acres, of which the premises are a part, was made about ten months prior to the date of the mortgage, which would bring it to some time in the latter part of the spring of the year 1798. Smith, it appears, went into possession of the particular premises in question, in the summer of 1798, under an agreement with Dickenson for the purchase, and remained there in this character, when the deed and mortgage between Barton and Dickenson were executed. This would not be deemed an adverse holding. It was not hostile to Barton!s title- Dickenson could not have set up against Barton an adverse holding, and Smith, who claimed under him, must be considered as standing in the same situation,

2. Eleanor Gallaway was not an interested witness ; the verdict in this cause could never have been given in evidence, in an action of dower brought by her. But another answer to the objection is, that she was called to testify as to the time the deed was actually executed. Admitting it to have been antedated, it would be good and effectual from the time of its execution; an acknowledgment, therefore, at any time, duly made by her, would take away her right of dower; and if she never had legally acknowledged it, her signing would be no bar to her claim of dower, so that on no ground whatever could she be interested. She was not by her deed estopped from showing it to have been executed at a time different from the date. The date is unimportant. The execution and delivery is the important time from which a deed is to take effect. ( 2 Johns. Rep. 234 . 4 East, 477. 3 Lev. 348.)

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3. The declarations of Smith, while in possession of the premises, as to his title, were admissible against the defendant. These declarations would have been good against Smith, and are also competent evidence against all who claim under him. This principle has been repeatedly recognised, both in our own and. in the English courts. ( 1 Johns. Rep. 343 . 1 Esp. Ca. 438. 2 Term Rep. 53.)

4. Whether the deed from Dickenson to Smith was actually executed at the time it bears date, was a question proper for the consideration of the jury. Some doubt may exist as to that fact. I am inclined, however, to think that the verdict is according to the Weight of evidence ; at all events, it ought not to be set aside on this ground.

' 5. The deed from Dickenson to Smith cannot, in its operation, relate back to the time the contract between them was made, so as to bring it within the scope of the decision in the case of Jackson v. Raymond.^[1] It is a general rule, with respect to the doctrine of relation, that it shall not dft Wrong to strangers ; as between the same_ parties it may be adopted for the advancement of justice. (3 Caines, 263.) Barton was a stranger to the contract between Dickenson and Smith, and it would be the extreme of injustice to permit his mortgage to be defeated, by considering Smith’s deed to take effect by relation, from the time he made his contract for the purchase of the premises.

6. There are no grounds, for any objection against the charge of the judge. The case was fairly submitted to the jury, with such observations as the testimony warranted.

On every ground, therefore, the motion for a new trial must-be denied.

Rule refused.

* 1 Johns. Cases, 85. note.