Jackson ex dem. Brown v. M'Vey, 15 Johns. 234

Jackson ex dem. Brown v. M'Vey

15 Johns. 234 | N.Y. Sup. Ct. | 1818

Thompson, Ch. J.

delivered the opinion of the court. The plaintiff moves for a new trial on two grounds, 1st. That the verdict was against the weight of evidence : 2d. That the judge improperly excluded evidence offered on the part of the plaintiff.

The lessors of the plaintiff claimed the premises in question as heirs at law of William Brown, deceased, who was the son of John Brown, and the question submitted to the jury was, whether the ownership set up by John Brown was. *237in his own right, or as executor of his father, Duncan Brown. It appeared in evidence that Daniel M'Vey, the defendant’s father, went into possession under and with the permission of John Brown. The right to recover, as put to the jury, depended on the question, whether John Brown, in this transaction, was acting in his own right, or as executor of his father. The jury decided that he was acting in the latter character; and the verdict is supported by the weight of evidence.

The case was submitted to the jury upon the plaintiff’s own evidence ; no testimony was offered on the part of the defendant. From the plaintiff’s witness it appeared that John Brown acknowledged that the lands in question had been sold by Duncan Brown, his father, to one Duncan Dove, who had given a mortgage to secure the purchase money. This mortgage appears to have been given in the year 1753, to secure the payment of 80l. in one year thereafter. It was proved that John Brown said he claimed the land until the mortgage was paid: this shows very clearly that he was acting as executor; and this conclusion is much strengthened by the fact that he was jnot the heir at law of his father. His brother, Daniel, was the eldest son, and there is nothing in the case affording any grounds to infer that John Brown had acquired any right from his father, except what grew out of his executorship. When all that he has done in relation to the premises is consistent with, and within the scope of his duty, as executor, it is unreasonable to conclude that he acted in any other capacity, especially as no colour for any other claim is shown, independent of his own declarations. These declarations were not admissible as evidence of title : this is the settled doctrine of this court. In Jackson v. Shearman, (6 Johns. Rep. 21.) the court say that the acknowledgments of a party as to title, are a dangerous species of evidence, and though good to support a tenancy, or to satisfy doubts in cases of possession, they ought not to be received as evidence of title. The proof offered was, that John Brown had, in conversation with several persons, both before and after M'Vey’s entry, claimed the land as absolute owner. These were not declarations made by him whilst in possession, ayd to show the character of his possessions *238but declarations as to the title, and as such they were inadmissible. The motion for a new trial must, accordingly, be denied.

Motion refused.