4 Conn. 247 | Conn. | 1822
On motion for a new trial, the court will not decide any question arising on the record. Of this description, is the objection founded on the admission of Minor, that the delivery of the deeds to him and Wright were contemporaneous. The same observation is applicable to the defendant’s argument relative to the decree of the court. If the above objections are of any validity, as they are founded upon facts apparent of record, they are the proper subject of a writ of error.
The testimony of Dunning and the entry on the deeds of Minor and Wright, by the town-clerk, specifying the time in which they were respectively recorded, have been the subject of distinct objections; but they are so intimately connected as only to require a joint consideration. To show that the delivery of Minor's deed was prior to the delivery of the deed to Wright, a connected train of facts is disclosed, establishing the proposition, that the deeds never went out of the grantor’s possession, until by his agent, they were put into the hands of the town-clerk for record; and that then, the deed to Minor was delivered five minutes, anterior to the deed to Wright. The evidence admitted, was to the following effect. Before the above deeds were signed or acknowledged, Hawley, the grantor, told Dunning, the witness, that so soon as they were completed, he should send them to him, by one Newton Platt. He directed Dunning, on their reception, to carry them to the town-clerk, and deliver the deed given to Minor, for record, five minutes before the one given to Wright, “as he intended Minor's should take effect first.” Platt brought the deeds to Dunning, and repeated the above instructions; upon which they were received by the witness, carried and delivered to the town-clerk, pursuant to the preceding direction; and the entries were made upon them as they now appear.
Upon this brief statement, certain inferences are indisputable. 1. That Dunning was appointed the agent of the grantor, and acted according to the authority delegated; and that the repetition by Platt, of instructions antecedently given to the witness, although it had no positive efficacy, and was incompetent evidence, did not detract from the power before communicated. 2. That the acts of Dunning in delivering the deeds, and giving the directions to the town-clerk, are of the same legal effect, as if they had been done by the grantor personally. 3. That consequently, the deeds remained in the grantor’s
The entries made by the town-clerk, were competent, in corroboration of Dunning’s testimony, to show that he was not mistaken; and of the same relevancy, as a private memorandum of the witness would be, in authentication of the same facts, by establishing the correctness of his memory. The entries of the town-clerk were not admitted to prove priority of delivery, but to confirm the recollection of the witness. So soon as the deeds were put into the town-clerk’s possession for record, they were delivered, and not before; and to admit testimony, in proof of the preceding facts, was proper, to show, that when the deeds commenced a valid existence, the one to Minor had the priority.
An objection has been made to the admission of Minor as a witness; but the facts, on which it was founded, are so imperfectly disclosed, that the court cannot know either the object or nature of his testimony. Admitting, for the sake of the argument, that the witness had an interest in the points mentioned; there is no statement that his evidence bore in that direction. If competent to answer any question, he ought not to be rejected generally. Bent v. Baker, 3 Term Rep. 35. Smith & al. v. Carrington & al. 4 Cranch 62.
Waiving, however, the insufficiency of the objection, as it appears on the motion, and assuming, that Minor’s testimony related to the matter supposed, I can discern no interest in the witness.
For the sake of perspicuity, I will state the objections made, and attend to them, in the order in which they were presented.
1. It was said, that the court erred in admitting Minor as a witness, because he gave deeds containing covenants of sei-sin and warranty to the plaintiff and Booth, and to Terrill and Babbitt.
With respect to the supposed claim under the deed to the plaintiff and Booth, that is entirely out of the question; as the witness was released by the plaintiff, who holds the entire title, from all claims and demands.
It has been contended, that if Broome prevails, Minor will be liable to Terrill and Babbit on the covenants in his deed; but the ground of this assertion, it is difficult to apprehend. Is it insisted, that the title is in controversy, on a bill of foreclosure; (2 Pow. Mort. 1044.) and that the determination
2. It has been insisted, that if the title of the defendant is not postponed, Minor will be liable for the rents and profits; but if it is postponed, and the defendant foreclosed, he will be discharged from all liability. I ask, is this the operation of a decree of foreclosure, in favour of one person against another, who are not parties to the record? The objection is too unfounded to require discussion. The effect of the decree, is merely to extinguish the defendant’s equity of redemption. It has no relevancy to the question of rents and profits, founded on legal title; nor is it admissible evidence, on this point, for or against any one; much less, for or against a person, who was no party to the suit, in which the decree was pronounced.
3. It has been contended, that Minor had a direct interest to enlarge the debt due from Hawley, which the defendant was bound to pay, if he would prevent a foreclosure; but the proof of this position has not been established. On the contrary, Minor neither directly, nor remotely, derived, or could derive, any benefit from the decree.
New trial not to be granted.
