1 Keyes 264 | NY | 1864
The nonsuit was properly refused, irrespective of the question whether the limitation applicable to the case was twenty or twenty-five years. To make the limitation applicable at all on such a motion, there must have been evidence of adverse possession, and that evidence must have been substantially uncontroverted, or so greatly preponderant as to overthrow a verdict rendered in opposition to it. To justify the defense of adverse possession, the possession must appear to have not only been adverse, but continually and uninterruptedly so. (Colvin agt. Burnett, 17 Wend. 55 ; Brant agt. Ogden, 1 Johns. 156.) There was much evidence to show, by the declarations of Lambert, that it was, not of that character, but was consistent with the plaintiffs’ title. This evidence was proper at least to characterize the possession, if not to control the title.
There was also evidence of the defendants’ own admission of a similar character. It was, therefore, a proper matter for the jury to determine, and furnishes an effectual answer to the motion -for a nonsuit. (Pitts agt. Wilder, 1 Comst. 525 ; Hunter agt. Trustees of Sandy Hill, 6 Hill, 507.)
I think, however, one or more copies of the will of Lambert, the patentee, was erroneously rejected. By that will, three hundred acres of land (which there was evidence to show covered the premises in question) were given to his grand-son, Lambert Sternbergh, under whom the defendants claim.
This will, if it had been produced, would have been admissible without proof, as an ancient paper. It was regular upon its face; that is, apparently executed with legal formality. It bore date on the 7th of January, 1765 ; the testator died in the same year ; it was “ an old, ancient paper from its looks; it was rolled up; the paper was coarse; looked as if it had been folded; it was worn; ink and all looked old; coarse handwriting.” It was found among the descendants of the testator, in the possession of a
If this last particular, possession in accordance with the will, is sustained by the evidence, as I think it clearly is, for the possession of the defendants themselves, in addition to that of other parties, may be said to be of that character; then, according to all the authorities, it would have been admissible without proof of execution, (Jackson agt. Laraway, 3 Johns. Cases, 283; Jackson agt. Chrismen, 4 Wend. 277.)
But it never was absolutely indispensable that possession, in strict accordance with the terms of the instrument, should be shown, to entitle the paper to admission as an ancient paper. If it were so, many a title would be destroyed. Nor is it possible to trace possession back beyond the knowledge of living men, except by tradition or hearsay, or by the intrinsic probabilities of the case, and the consistency of existing facts with such prior possession. Mere efflux of time will not make it admissible without proof. But aside from this, any circumstances which go to confirm the genuineness or authenticity of the document, make it admissible in evidence. It “ must be corroborated by possession or other circumstances.” (Jackson agt. Luguere, 5 Cow. 221; Jackson agt. Laraway, 3 Johns. Cases, 283; Starkie agt. Bowen, 6 Barb. 114. 115.)
A deed appearing to be of the age of thirty years, may be given in evidence without proof of execution or possession, if such account of it be given as may, under the circumstances, be reasonably expected, and will afford the presumption that it is genuine. (3 Johns. Cases, 283; Hewlett agt. Cook, 7 Wend. 371; disapproving dictum of Kent, J. in Jackson agt. Blaashan, 1 Johns. 298; see also Bogardus agt. Trinity Church, 4 Sandf. Ch. 623; Greenl. Ev. § 114, note 3.)
The date of the paper, if resembling the residue of its contents, and not appearing to be altered or interpolated, or otherwise spurious, is of itself a circumstance of some strength to show the period of its execution, inasmuch as a suspicion of its genuineness is not to be unreasonably indulged. But in this case there was positive evidence of its antiquity. A deed of Adam Sternbergh, introduced in evidence, and not disputed, to have been executed in 1785, and recorded as early as 1786, contains an extract from this will, and refers to it by its date, showing, of course, its existence at a prior period. One of the copies is proved to have been in the’handwriting of Harmanus Bouck, a lawyer, who died in 1831 or 1832, twenty-five or twenty-six years before the trial, and was out of practice some years before his death; another copy, made from the last by General Gebhard, purports to have been made on the 27th of December, 1829. Still another copy, an exact copy, and the most important of all, was made by Caleb Carpenter from the original, between the time it went into his possession, nineteen years before the trial, and seven or eight years after-wards, while it was in his possession. This witness (and his wife corroborates him) describes the original will itself, and gives such particulars of its appearance and apparent genuineness as, I think, clearly entitles it to be used in evidence, if its contents could be shown. I know of no rule of law which absolutely requires the evidence of genuineness and authenticity to be determined by inspection before a court and jury, instead of competent proof from persons who had seen it—its non-production being sufficiently accounted for.
If then the paper itself, if produced, would be admissible, is not evidence of its contents admissible in case it be lost
Further than this, I am not aware that the rule has ever been carried. Innocent parties should not suffer from the indiscretion or wickedness of others, with whom they have no connection, and of whose acts they have no knowledge. I do not discover anything tending to cast suspicion on the defendants, as having been in any way connected with, or cognizant of the destruction of this paper. The established rule, therefore, applies, that the next best evidence is to be admitted. (Fetherly agt. Waggoner, 11 Wend. 599.)
The secondary evidence, if in its nature admissible, was of the most satisfactory character. It was in writing, and sworn to be an exact copy. A second copy, differing, however in the name of one of the subscribing witnesses, was also produced; but whether copied from the original, does not appear. A third copy, which, though copied from the last preceding copy, was in all respects like the first copy, was also produced.
These were all alike, except in the single particular above mentioned, and coincide also in point of date and contents with the extract from the will contained in the deed of crazy Adam, of 1785.
The first being proved to have been taken from the original, was entitled to very high consideration as evidence, and, as it seems to me, was clearly admissible. I think it is. no sufficient answer to this to say this is dangerous evidence. Like all secondary evidence, it is not equally satisfactory or safe with that of the original paper; but it would invade a perfectly well settled rule of law, and in many cases operate most oppressively, to withdraw it entirely from the consideration of the jury.
It does not belong to the judge at the trial to reject one of two good defenses which the party may offer,' especially when he does not put his decision on any such ground, nor indicate to the jury his opinion on the other branch of the ease. The party has a right to take his chances before the jury on both, and it is dangerous for a court of review to indulge in conjectures as to the probable non-prejudice to a party of the exclusion of an instrument of evidence vital to one branch his defense. There would be more plausibility in this aspect of the case, if we could see that the judge at the trial had distinctly charged that the defendants,
Again, the will appears to have been an important item of evidence, to rebut the presumption of a deed relied on by the judge in his charge, from Lambert to Adam. This was material evidence on that point.
I think further, that if the exclusion of the will at the trial was upon the ground (as it manifestly was not) that the defendants had another substantial ground of defense, such ground should have been (as it was not) stated by counsel, and sustained by the judge, as a legitimate objection to the testimony. The parties could then have distinctly taken their exceptions to such a ruling, and distinctly prepared themselves for other 'grounds of defense.
Again, it is said that the rejection of this evidence was of no moment, for the further reason- that the will, omitting words of inheritance, gave only a life estate to Lambert (2d), waiving the question whether the will conferred a fee or a life estate only on Lambert (2d), (which is not without embarrassment, for the will purports to dispose of all the testator’s temporal estate, and there is no residuary clause giving the remainder of this estate to any other person). I think it cannot be said this evidence was unimportant, for the following reasons:
1. If it showed a life estate in Lambert (2d), it was proper to show that fact as introductory to, and in connection with, other evidence on which a complete defense was to rest. Thus it was competent to show it in connection with the deed from crazy Adam, which evidence it corroborated and supported.
2. It tended to show title out of Adam, the son of the testator, on'whom (Adam) the plaintiffs relied as the source of their own title. Adam died before his father, Lambert, and if Lambert was seized and died in possession of the premises, of which there was much, not to say conclusive evidence, proof of Lambert’s will, carrying away the estate from Adam, and, of course, from his devisees, would be a very material link in the chain of defendants’ evidence ; and
If Lambert (1st) died in possession, owning the premises, then the only way in which the plaintiffs could claim would be as his heirs-at-law. But defendant Adam (as well as numerous other persons), was also (in such case) his heir-at-law, and the parties would be tenants in common, and the plaintiffs would not be entitled to recover at all without showing an ouster by their co-tenants, which would not be presumed; and if they did recover, would be entitled to only a fractional proportion of the premises, instead of the entire tract which they in fact recovered at the trial. Moreover, I think so narrow, and far from obvious ground for the exclusion of apparently proper evidence, should have been mentioned at the trial, to the end that the party ruled against might have an opportunity to obviate the objection by other evidence.
Again, it is now urged, but without ever having been suggested on the trial, that this will neither devises, nor assumes to devise, the premises in question.
I should be strongly inclined to adopt the contrary view, that it was assumed at the trial, and, therefore must be taken for granted here, that it did dispose of the premises in question. I am aware that there is proof in the case tending to show that one of the defendants admitted that the crazy Adam deed (which related to the same premises as did the will) “ was of no use against the Enders, because it related to the woodland ” (a different tract); but there is, on the other hand, much evidence tending to show that it did relate to the premises in controversy, and it was, therefore, a question to be submitted to the jury. The witnesses (several of .them) show that the premises in controversy, are lot No. 110 in Morris and Coeymans’ patent (the woodland lying in the Sternbergh patent), and several others testify that the mother of Lambert, 2d (the devisee), lived on the farm in question, which satisfies the words of ‘the devise, which are : “ I give unto my grandson, Lambert Sternbergh, three hundred acres of land,' which his mother now has in
I am not satisfied with that part of the charge which authorized the jury, in case Lambert, the father of the testator Adam, was originally the owner of the premises in question, to presume a conveyance from Lambert to Adam, if they were satisfied from the evidence such conveyance had been made. There would seem to be a saving clause to the otherwise positive direction or authority of the court in the phraseology at the end of this sentence ; but when we come to consider, as the case states, that “ all the evidence upon which said charge was founded is set forth in the bill of exceptions,” and on examining that evidence find no proof of any such conveyance, nor tending to prove that one had been made, I think the remarks of the judge are exceptionable, and well calculated to mislead the jury. The judge had already told the jury, in effect, that the death of Adam in possession, implied title in him at his death, because he had said that the will of Adam, if he died in possession, prima facie gave title to the plaintiffs ; which, I think, was as far as he was authorized to go. To encourage the jury to go further, and presume, in the absence of evidence, and against evidence, a conveyance from the father to the son, when it was a disputed question before them, whether the father or the son was in possession, and there was much evidence tending to show that the father was, at the time of his death, one year after his son’s death, and the father had made a will (or there was evidence tending to show that he had) disposing of the property in question, was but stimulating them to indulge in the loosest presumptions ; in the first place to presume title in fee in Adam, from the fact of possession at his death; and, if he was not in possession, to presume a conveyance from his father to Adam, in order that Adam’s will might take effect. The rule on the subject' is carefully, and I think, well stated, by Chief Justice Tin
There are subordinate questions in the ease, which I do not deem it necessary to examine, and if I am right in the conclusions thus far arrived at, they are wholly unimportant to be considered.
I think the judgment of the supreme court was erroneous, and should be reversed; and that a new trial should be granted, with costs to abide the event.
I am of opinion that upon the evidence which was given respecting the will, of which a copy was offered in evidence, and upon the proof which was proposed to be given, and was rejected, the copy should have been received. I do not perceive why, upon principle, secondary evidence may not be given of a document which has been accidentally lost or destroyed, without the fault of the party offering it, although such document was one which from age or other circumstances, proved itself, instead of being authenticated by ordinary proof of its execution. The law regards an ancient deed or will, which has been kept in the proper custody, and where the possession and enjoyment of the property devised or conveyed, has, corresponded with the dispositions of the instrument, as prima facie an authentic document. So far as its consistency as a piece of evidence is concerned, it stands on the same footing as an instrument duly proved or acknowledged. If a paper, the execution of which can be proved, is lost or destroyad, a party interested under it may, from the necessity of the case, prove what it contained, and avail himself of it as though it had been produced. But if, instead of being capable of proof, by bringing witness to its execution, it be shown to be a paper, which under the circumstances appearing in evidence, proved
It is a much more difficult question whether, considering the course which the trial subsequently took, the error was at all material. The deed from Adam Sternbergh, the grandson of the testator, and his heir-at-law, to another grandson, Lambert Sternbergh, under which the defendants claim title, to which I have just referred for another purpose, was sufficient to carry to the grantee the title to the premises, on the assumption that Lambert (the elder) died intestate as to his property, either wholly, or in respect to the reversion expectant on the death of Lambert, the grand-son. Hence, it is urged with some reason, that if Lambert Sternbergh (the elder) died seized of the premises, the defendants made out a title to them under the deed of his heir-at-law, and thus the existence of the will became of no direct importance. If there had been any question of fact to submit to
The premises in question appear to be embraced in two deeds, executed respectively by Philip Schuyler and others, and by Cornelia Schuyler and others, to Lambert Sternbergh, the elder, in 1754; eleven years before the death of the grantee. The title is not traced further back, nor is there any direct evidence that the grantee entered under the conveyances. If the copy of this will had been admitted, an authentic assertion of ownership on his part would have been shown, within about ten years from the execution of the deeds to him. The lands in question, among others, were specially devised by that will to his grand-son Lambert. It is unimportant to consider whether the want of
As an historical problem, I should consider the probability to be that Adam was in possession of the premises without title, but with the permission of his father; and that the latter, after his son shad died before him, elected to devise the premises to the only son of his deceased son. I am inclined to the opinion that the excluded will was competent upon the question of ownership or seizin, between this father and son, considering the obscurity of the other evidence and the great length of time which had elapsed. It was a strong assertion of ownership, and should have been considered in connection with the other proof. I think that part of the charge of the judge was erroneous, in which he instructed the jury that' if Lambert, the father of the testator Adam, was originally the owner of the premises in question, the jury might presume a .conveyance from Lambert to Adam; if they were satisfied from the evidence that such conveyance had been made. ' There was no evidence that Adam possessed the premises for any considerable length of time before his death, if he was in possession at all. After his death and the death of his father, which soon followed, possession of his widow and of her second husband, was as consistent with the suggestion that the land had always belonged to Lambert, the father, as that he had conveyed it to his son. There was then really but a short possession, if any, upon which to base the presumption. To presume a deed under such circumstances would be mere conjecture, not-warranted by any principle of law.
I am in favor of reversing the judgment and granting a new trial, for the error in excluding the copy of the will, and for the error which I have pointed out in the charge.
Judgment reversed.