25 Wend. 259 | N.Y. Sup. Ct. | 1840
After advisement, the following opinions were delivered:
This is a writ of error brought by one of the defendants in an ejectment suit which was prosecuted against him and his co-defendant in the court below by Kimball & Rowe, to recover a lot of land in a patent of 5,000 acres granted by the colonial government, on the 26th of June, 1769, to Francis Legge, a reduced officer of the French war, for military services. The plaintiff in error, and Kimball, who is made a joint defendant in the writ of error with Rowe, in whose favor judgment was given in the court below, appear to be at cross purposes in this court. It appears by the record, that Kimball & Rowe, who were plaintiffs *in the court below, made separate and distinct claims to the [ ' 264 ] premises in question, by several counts in the declaration, as authorized by the Revised Statutes; and that a verdict was found in favor of Rowe, but against Kimball. Judgment was therefore given against the plaintiff in error in favor of Rowe, upon the verdict in favor of the latter ; and for the plaintiff in error against Kimball. Brown, nevertheless, brings this writ of error against both of the original plaintiffs, and assigns for error that the judgment was given in the court below in favor of both ; and he therefore prays for a reversal of the whole judgment. Kimball, on the contrary, unites with Rowe in the joinder in error, and prays that the judgment against himself, as well as that part of it which is in favor of Rowe, may be affirmed. Upon this state of the case, it follows, of course, that the judgment must be affirmed as to Kimball, unless the plaintiff in error has satisfied the court that he has been or may be injured by this judgment in his own favor against Kimball, even if it should turn out that the judgment in favor of Rowe was erroneous.
Rowe claimed title to the premises in question as the immediate grantee of Legge the patentee, by virtue of the supposed deed of the 3rd of January, 1770, for the whole patent; and the principal question discussed on the argument here, was as to the probable validity of that deed, from the facts given in evidence upon the trial, and the appearance of the deed itself, and the language of the instrument in reference to certain supposed matters of public history. These matters were all proper to be discussed before the jury upon the trial of the cause; or upon an application to the supreme
The objections to the admissibility of the depositions of some of the witnesses examined under the commission, that it did not appear from the return itself that they had been examined upon all the cross interrogatories, certainly was not sustainable after the testimony given on the subject at the circuit. The cases cited from Washington's Circuit Court Reports, show that the objection was well taken in the first instance. The witnesses should undoubtedly be examined upon all the interrogatories and the cross interrogatories allowed by the proper officer and annexed to the commission; but as there is no positive statutory regulation on the subject, it was certainly competent for the plaintiff to prove that the counsel for the adverse party was present at the execution of the commission, and either expressly or tacitly waived the taking down the answers of the witnesses to interrogatories, when nothing was elicited by the questions which could be of any use to either party. The witness testifying on that subject, in answer to an interrogatory from the judge, stated positively that every inquiry was put, and the answer, if deemed material by any one, was written down. He also said the depositions were all written down by the commissioners, and then, in presence of the counsel for both parties, read over to the witnesses before they were signed. From this statement of the manner of executing the commission, there does not appear to be any ground or doubt as to the correctness of the decision of the court below upon this point.
• The deed was sufficiently proved to entitle it to be read in evidence, according to the settled law of this state. Both subscribing witnesses to the deed were dead; and in such cases, proof of their hand-writing is sufficient evidence to authorize the deed to be read to the jury, without proof of the hand-writing of the grantor. Such was the decision of the supreme court in this state forty years since, in the case of Mott v. Doughty, 1 Johns. Cas. 230. The decision was again repeated by the same court, nine [ *266 ] years afterwards, *in the case of Sluby v. Champlin, 4 Johns. R. 461. In this case, proof of the hand-writing of only one of the subscribing witnesses was sufficient; but there was abundant evidence to establish the genuineness of the signatures of both. The genuine, contained upon its face sufficient evidence, after a lapse of more than sixty years, of the identity of the grantor in the deed as the Francis Legge to whom the
*1 do not precisely understand what the counsel on the trial [ *267 ] meant by urging as a ground of-non-suit, that the deed was to be considered as dormant. The owner of land may let his deed sleep for ages without losing his title, if there is no person in possession of the land, holding adversely to him. If the counsel only meant to insist that the fact that the grantee had not asserted his title immediately after the land began to be settled on, but on the contrary had permitted the patent to be occupied by squatters for many years, was a circumstance of suspicion as to the genuineness of the deed, the judge was unquestionably right in refusing to non-suit on that ground; as that also was a proper subject for the consideration of the jury.
I concur with the supreme court in the opinion that it was improper to give the declarations of the witnesses in evidence, without giving them, in the first place, an opportunity to explain; and that the fact that the witnesses had been examined under a commission, did not prevent the operation of the principle upon which the rule is founded.
Upon the whole, I am unable to discover that any mistake in law was made by the judge who tried the cause, to the prejudice of the rights of the plain*
I must therefore vote to affirm the judgment of the supreme court.
The principal points in this case appear to be whether the depositions of the witnesses taken under the commission and objected to, ought to have been read on the trial; and whether the deed from Francis Legge to William Rowe was so proved as .to entitle it to be submitted to the jury.
The principal objection urged against the depositions is that the last cross interrogatory'on the part of the defendants was not answered. This interrogatory was the general one usually put as the concluding interrogatory, for the greater precaution lest the special interrogatories should not elicit all the important facts within the knowledge of the witness. Its [ *268 ] *object is not that the witness should repeat the facts stated by him under the special interrogatories, but to induce him to state such facts as the special interrogatories, in his judgment do not embrace, and is calculated to draw from him the whole truth within his knowledge, which may affect the subject in controversy: and such facts, when so elicited, assume all the importance they would do, were they drawn out on special interrogatories, subject, of course, to the same objections as to their admissibility. So timch importance has been attached to this interrogatory, that when it has not been answered or noticed, in some cases the objection has been held fatal to the whole deposition. Judge Washington, in the case of Dodge v. Israel, 4 Wash. C. C. R. 324, says, “ The objection is fatal to the whole of the deposition, and has been decided in this court more than once. The witness must answer substantially all the interrogatories, as it is otherwise impossible to say that he has told the whole truth.” See also Richardson v. Golden, 3 Wash. C. C. R. 109 ; Graham Pr. 487. But after all, I apprehend the importance of having the answer appear, is to show that the witness has answered all the interrogatories, and thereby to infer that he has told the whole truth within his knowledge. And if this be so, if it dan be made to appear, independent of the interrogatories and answers, that he has revealed all the .facts within his knowledge, or that the interrogatories have all been put to him and answered, the mere fact that some of the answers are not written down, not being desired by either party, should not destroy the whole deposition. The rule should not be enforced so rigidly a's to compel the parties to have taken down improper, impertinent or irrelevant matter, which neither desire, for the purpose of showing to the court that all the interrogatories have been answered. But when the parties are not present before the commissioners, either in person or by counsel, I know of rió discretionary ptrtfer in the commissioners to reject the answers
The next question is, ought the deed of Francis Legge to William Rowe to have been read in evidence and submitted to the jury. The rule as it once existed for proving an instrument attested by subscribing witnesses, as laid down by Lord Kenyon, and assented to by his able associates, Ashurst, Grose and Lawrence, in the case of Barnes v. Trompowsky, 7 T. R. 265, was that every instrument, whether under seal or not, the execution of which is witnessed, must be proved in the same manner, regularly by the witness himself, if living; if dead, by proving his hand-writing; if residing *abroad by sending out a commission to examine him, or at [ *270 ] least, by proving his hand-writing, which last the learned judge remarks, is indeed a relaxation of the old rule, and admitted only of late years; and so well was this rule then considered to be established that the learned Chief Justice refused to hear an argument upon it.
In the case of Adams v. Kers, 1 Bos. & Pul. 360, Buller, J., says, “ Where a witness is dead, the,course is to prove his hand-writing. In this
On proving the death of subscribing witnesses and their hand-writing, I think the party is entitled to have the instrument thus proved submitted to the jury, and that it is not in the province of the judge to reject it. If, however, there are suspicious circumstances attending the instrument, it may be necessary to take the precaution to rebut them by proving, in addition, the identity of the person executing the instrument or his hand-writing. Buller, in his nisi prius, 255, says, that if there is any erasure or interlineation in an old.deed, giving an appearance of fraud, it ought to be proved in the regular manner, by the subscribing witness; or if he be dead, by proof of such death, his hand-writing and the hand-writing of the party ex- [ *271 ] cubing it. See also, 1 Saund. *Pl. & Ev. 518. But I presume the learned judge did not mean to be understood that on proof of the death of the subscribing witness, and his hand-writing, the deed should not be submitted to the jury as testimony, without proving also the handwriting of the party who executed it. He might think, by way of precaution, it should be proved, to counteract the presumption of fraud, yet in the absence of such proof, I apprehend he would not have deemed himself justified in pronouncing the deed fraudulent and void. When proof, is made of the death of a subscribing witness, and of his hand-writing, the law infers that if such witness were present in court he would prove the exeeution of the instrument; and such testimony, while un-invalidated by other proof, though at best but circumstantial evidence, is held sufficient. But, says Marshal, C. J., in Murdock v. Hunter, 1 Brackenbrough's R. 140, “ Whatever deducts from it may and ought to be weighed against it. It is always adviseable, therefore, to support it by other testimony, if such other testimony be in the power of the plaintiff. So in the case of Whitlock v. Musgrove, 1 Cromp. & Mees. R. 511, where a note was signed by a mark, in addition to the usual proof, the proof of the identity seemed to be necessary.
As to the proposition of the defendants counsel to prove the declarations of some of the witnesses whose testimony had been taken under the commission, made after the execution of it, contradicting some of their statements, I think under the circumstances of such case, the judge was right in rejecting the testimony offered, and I am satisfied with the reasoning of the supreme court upon that point. From the view I have taken of the several objections raised by the counsel for the plaintiffs in error, I have found no satisfactory reason for reversing the judgment.
said he should vote for an affirmance of tne judgment of the supreme court, not perceiving any thing in the facts of this case which in his opinion would justify the witholding the deed from the jury, after proof of the hand-writing of the subscribing witnesses, who were shown to be dead. The use of the term commonwealth in the deed, in reference to its date, excited no suspicion in his mind, as by a slight examination of the provincial statutes of Massachusetts, he had discovered two, in which that term was used: one in 1634, and the other in 1678. Nor was the fact of the year being written on an erasure, sufficient to authorize the judge to withhold the deed from the jury.
The facts of this case are peculiar and the ev
Our decisions and practice do not ordinarily require such additional proof, when the subscribing witness is dead, though there is high authority, and no small weight of reason for prescribing this as the universal rule. [ *274 ] But our courts in this *state have held that the proof of the deceased subscribing witnesses’ signature, ought ordinarily to be sufficient. The presumption is that the subscribing witness would hot have attested the execution by any other person than the one described. But I think this only goes to the extent of presumptive or prima facie proof when uncontradicted. When the signature of a witness now deceased is proved, the presumption is, for want of better evidence, that he knew the grantor
I consider the same reasons applied to stronger circumstances of suspicion as governing this case. These doubts might have been removed by evidence
I conclude, therefore, that this judgment should be reversed, on the ground of the deed being such on its face as to demand additional evidence, either
In respect to the objection to the receiving in evidence the depositions taken under a commission, because no answer appears to the last general cross interrogatory, I concur in opinion with the Chief Justice, and think that this omission, "though irregular, could not, under [ *277 ] the circumstances of the case, be taken advantage of at the trial.
On the question being put, Shall this judgment he reversed ? the members of the court divided as follows:
In the affirmative: Senators Dixon, Ely, Hopkins, Lee, Maynard, Moseley, ¡Nicholas, Peck, Tallmadgb, Van Dyok, Verplanck—11.
In the negative: The Chancellor and Senators Edwards, Furman, Hull, Hunter, Livingston, Paige, Root, Wager—9
Whereupon the judgment of the supreme court was reversed.