14 Wend. 619 | Court for the Trial of Impeachments and Correction of Errors | 1835
The following opinions were delivered:
The right of the lessors of the plaintiff in the court below to recover the premises in question in this cause, the south half of lot No. 80, in Treat and Morris’ patent, depends upon the validity of the deed of September, 1792, to Le Fevre and wife and Madame D’Autremont. This deed is for 600 acres of land, and purports to be executed by Treat and Morris, under whom both parties claim title, by Charles Felix Bue De Bouloigne, their attorney. It was duly acknowledged and recorded as early as 1796. It recites the granting of a patent to Treat and Morris, in 1787, for 15,360 acres of land in Green Township; the execution of a power of attorney from them to Charles Felix Bue De Bouloigne, in 1791, authorizing him to sell and convey the lands; the execution of a contract of sale by him, as such attorney, to Le Fevre and wife and Madame D’Autremont, for 600 acres, which contract was annexed to the deed, and conveys to the grantees in fee the 600 acres, parcel of the 15,360 acres, to be surveyed and taken according to, and in pursuance of such contract of sale.
The first objection to the validity of this deed, urged by the counsel for the plaintiff in error, is, that there was no legal evidence on the trial of the existence and due execution of the power of attorney recited in the deed. To establish the fact that such power had been executed by Treat and Morris, the lessors of the plaintiff gave in evidence the declarations of Morris, under whom the defendant subsequently derived his claim of title. These declarations or admisions were made about the year 1801, while Morris himself was the sole owner of the premises in controversy, if the power had not been executed so as to vest the title in Madame A’Autremont, under the deed. It was also proved that both of the subscribing witnesses mentioned in the agreement annexed to the deed as
But it is said there was sufficient to raise a presumption that the power itself was in existence, at Gabion’s, in Paris, where the contract of purchase was executed in 1792. The agreement annexed to the deed contained the copy of a French translation of the power said to have been deposited with the original at Gabion’s, the year previous ; and there can be very little doubt that the power translated by L’Abbe De Francois, in October, 1791, was the same which was referred to in the admissions of Morris, as having been executed by himself and Treat, as he probably was aware of the existence of the French copy annexed to the deed, which was then on record. But although it was in the hands of Gabion forty years before the trial, the fair presumption would be that it was taken again by Bouloigne, when he returned to this country; as it embraced the whole of the lands of Treat and Morris in the patent, as well as the 600 acres sold to Le Fevre and D’Autremont. That supposition also corresponds with the declarations of Morris, as to its being given up and cancelled or de
The title to the undivided 600 acres passed immediately to the grantees under the deed, with the right to elect in which part of the tract it should be located, as soon as the patent was allotted. The testimony shows that the grantees exercised the right of election, and took possession of their six one hundred acre lots, as early as 1793. This location, in conformity with the provisions of the deed itself, rendered that certain and definite which was before uncertain, and gave to Madame D’Autremont a good legal title to lot No. 80, and the two other lots selected as her share of the purchase. The parol partition between her and Le Fevre was also valid. The judgment of the supreme court was therefore correct, and should be affirmed.
The question is, was the deed of 12th September, 1792, a valid deed to pass the title to Madame D’Autremont and her co-grantees. It purported to be executed by Bouloigne, by virtue of a power of attorney, and to give it validity it was incumbent upon the plaintiff to produce the same proof of the execution of the power, that fee was bound to adduce in proof of the deed. A power requires the same proof as a deed, to entitle it to be recorded. 1 R. S. 762, § 39. The power of attorney was not produced on the trial, but its non-production was attempted to be accounted for by proving the declarations of Morris, one of the grantors
It is supposed by the chief justice, who delivered the opinion of the supreme court in this cause, that Morris could not have been compelled to testify, had he been produced as a witness; but I see no reason why he could not. Had the les
It is unnecessary to consider the point urged by the respondents’ counsel, that the objection to the testimony ought to have been interposed when the interrogatories were framed or the testimony taken. The statute authorizes the objections to be made to the testimony on the trial of the cause, 2 R. S. 396, § 23.
I am of the opinion the power of attorney to Bouloigne was not legally sufficiently proved ; that the charge of the circuit judge was incorrect; and that the judgment of the supreme court should be reversed.
From all the evidence in the case there can be nodoubt that the power of attorney existed at the time Bouloigne executed the deed to D’Autremont and Le Fevre. The question however is, Does the ease before the court present competent legal proof to establish that fact ? The evidence on this pointis secondary; it rests altogether on the pa
It is objected, that as the plaintiff below gave evidence that the power of attorney was deposited with and recorded by Gabion, the notary in Paris, in 1791, the legal presumption is that it is in that office, and the plaintiff ought to have shown 'Hie diligence to obtain it by a search in that office. I con
I also consider the defendant below estopped from taking the objection to the secondary evidence. The testimony of Hartshorne was taken without objection; his answers are directly responsive to the interrogatories which were formally settled and agreed to by both parties. In Francis v. The Ocean Insurance Company, 6 Cowen, 416, Sutherland, justice, in delivering the opinion of the court, says, “ If no objection is made to the interrogatories, the information sought by them is admitted to be proper, and the answers must be considered as competent evidence, by the admission of the parties.” This was the law applicable to this case, which arose before the revised statutes.
I am therefore of opinion that proof of the declarations and admissions of the surviving patentee Morris, made against his interest, and while he owned the title under which the defendant below claimed, is competent legal evidence; and that the supreme court was correct in refusing a venire de novo.
There are several points in this case which have been laboriously argued by the counsel; but though I have examined them all, and the numerous authorities cited in their support, I did so with an impression obtained on the argument, that there was one single question on which the whole case turned. The result of my examinations and of subsequent reflection has confirmed the impression, and I shall therefore confine my observations to that question alone, being persuaded that if I am correct in the views which I shall endeavor to present of it, a discussion of the other points argued will be superfluous.
The question as it presents itself in this case is, can the execution of the alleged power of attorney under which the plaintiff derives his title to the premises from Morris and Treat be proved by evidence of the declarations of Morris ? To put the proposition on its general and broad ground, can the ad
I proceed then with the inquiry, Can proof of the declaration by a person who has title to lands, that he has made a conveyance of it to another, establish the fact that he did make such conveyance, so as to relieve the party claiming, from the necessity of otherwise proving the fact ? The argument in favor of such proof is, that any fact which legally can be proved by parol may be proved by the admissions of a party; that the original existence and contents of a lost deed can be proved by parol, and therefore its original existence and contents may be proved by the admissions of a party. This argument, assuming a form imposingly syllogistical, certainly is very specious, and to detect its fallacy, if it be fallacious, requires considerable astuteness; at least this must be presumed, since it has escaped the discernment of the supreme court, who have placed their judgment in favor of the plaintiff below entirely on this proposition. But if on examining the parts of this syllogism, we find its first branch, or what is termed by
But it is said that the statute of frauds does not change the character of evidence, but only the modes of conveyance; and although the admission of a party, if made nakedly to the fact, that he had transferred his land to another, could not be received as evidence of the fact, yet his admission that he had executed a deed which had transferred the land to another may be received. In short, that the statute, while it forbids the end, allows all the means necessary and inevitable to produce the end; it rejects proof to the whole, but does not exclude it to all the parts of the whole. This would be vio
But another difficulty is involved in the proposition which the judgment in this case has established: it is, that it necessarily carries the doctrine of proving facts by the admission of a party beyond its true principle. It assumes that every person who either is or has been interested against the facts proposed to be proved, is such a party as that his admissions, made when it would seem to be contrary to his interest to make them, shall be conclusive upon others, though he is in no respect a party to the suit in which his admissions are used. The proposition, therefore, is not merely that a fact which may be proved by parol, may be proved by the admissions of a party to the suit, but by combining with this principle a very loose doctrine, which from a sort of necessity has been tolerated for the purpose only of showing the character of a possession under which the party to the suit claims, we get established the broad principle that the legal rights of a party to a suit may be concluded by declarations made by any person, if at the time of making them they were apparently in contradiction of his own interest—no matter whether that interest is extin?
Though I have consulted all the authorities referred to on the argument, and some others, it cannot be useful to array or comment upon them at large. Some cases, it is true, have gone far to relax the old rules as to the proofs of written instruments, and some others, if I may be allowed to say it, seem to have been decided without a full view to the great principle of public policy and individual security, intended to be protected by the statute of frauds; but certainly no case can be found that intentionally goes so far as to establish, even by construction, that the title to lands can vest or be divested by parol. Those decisions that may seem to approximate to this conclusion, were produced by a disposition to preserve the original relations of parties in respect to lands, and to prevent their being changed by the lapse of time or the act of the law. It will be found that in all the original cases in which the confessions of a party were received, it was for the purpose of defeating a title set up by one in possession, and not to aid a title attempted to be established by one out of possession. The rule in this respect has no doubt been extended, and some cases may be found where it has been carried very far, but never so far as designedly to trench upon
On the question being put, Shall this judgment he reversed ? the members of the court voted as follows :
In the affirmative—Senators Edwards, Lacy, Lansing, M’Dowell, Tracy—5.
In the negative—The President of the Senate, the ' Chancellor, and Senators Armstrong, Beardsley, Beck-with, Crofsey, Downing, Edmonds, Fisk, Gansevoort, Halsey, Loomis, .Mac Donald, Mack, Maison, Van Schaick, Willes—17.
Whereupon the judgment of the supreme court was affirmed.