Jackson ex dem. Dox v. Jackson, 5 Cow. 173

5 Cow. 173 | N.Y. Sup. Ct. | 1825

Curia, per Sutherland, J.

It was made a point, in behalf of the defendant, upon the argument, that the evidence to show that the widow of Jackson claimed to hold the premises while she continued in possession, in right of her dower, and also the evidence in relation to the death of Jackson, were improperly admitted. The evidence was not objected to upon the trial, and the propriety of its admission cannot now be questioned.

But it is perfectly immaterial whether Jackson, the mortgagor, was dead or alive. The defendant professed to derive all his title from him. He supposed him dead, and therefore claimed as his heir. But if he was alive, then the defendant was merely his tenant. In neither case could his possession be adverse to that of Jackson, or his mortgagee.

The only question in the case is, as to the admissibility of the evidence offered by the defendant.

The case of Mease v. Mease, (Cowp. 47,) is conclusive against its admissibility. That was an action of debt up-311 bond, conditioned for payment at a day certain. The defendant pleaded that it was given as an indemnity to the plaintiff’s testator against another bond, and that he had not been damnified: to which plea the plaintiff demurred ; and the plea was held by Ld. Mansfield to be clearly bad. He held that the agreement stated in the plea, being against the express condition of the bond, it therefore could not be given in evidence. It is to be remarked that, for aught that appears, the agreement was in writing. The plea merely stated the fact. How it was to be made out was not disclosed

The case of Wells v. Baldwin, (18 John. 45,) is also very analogous to this. That was an action of debt upon a bond conditioned for the payment of money on a fixed day. The defendant pleaded that the bond ivas given as collateral security for the performance, by the defendant, of a certain contract or agreement between the parties ; and stated a satisfactory reason for not performing. The plea was held bad upon demurrer; and Gh. J. Spencer, who delivered the opinion of the Court, after having considered several of the cases, concludes by saying, that it would be against the strong current of authority to admit such a defence. And it is fairly to be inferred that, in his opinion, it was immaterial whether the agreement was in writing or by parol. He says, had the defendant entered into a bond without a condition, and taken from the plaintiff a defeasance in a separate instrument, referring to the bond, &c. then the defeasance might have been pleaded. But here the bond is with a condition, that the defendant shall pay certain sums of money at fixed times; and it would be contradicting and impugning the bond, to admit proof, that instead of paying the money stipulated in the condition, the plaintiff was not to be paid, unless he cleared certain lands in a particular manner.

Hayford, v. Andrews, (Cro. Eliz. 697,) Meres v. Ansell, (3 Wils. 275,) and Thompson v. Ketcham, (8 John. 189,) are also in point against the admissibility of this defence.

Proof of the confessions of Aniline, that his mortgage was not a lien on the land, were properly rejected. (6 John. Rep. 20. John. Dig. 213, and the cases there referred to.) As between Annine and the subsequent mortgagee, to whom the declarations are alleged to have been made, the proof might have been admissible, on the ground of fraud, shown to have misled or injured him ; but not between Annine and third persons.

The motion for a new trial must be denied.

New trial refused.