Jackson ex dem. Griswold v. Bard

4 Johns. 230 | N.Y. Sup. Ct. | 1809

Thompson, J.

delivered the opinion of the court. I shall briefly examine the several questions raised on the argument, in the order in which they were made.

1. The possession of Smith could not be considered adverse to Barton, so as to prevent the operation of the mortgage under which the lessors of the plaintiff make title, The agreement between Barton, and Dickenson and Harris, for the purchase of the 160 acres, of which the premises are a part, was made about ten months prior to the date of the mortgage, which would bring it to some time in the latter part of the spring of the year 1798. Smith, it appears, went into possession of the particular premises in question, in the summer of 1798, under an agreement with Dickenson for the purchase, and remained there in this character, when the deed and mortgage between Barton and Dickenson were executed. This would not be deemed an adverse holding. It was not hostile to Barton!s title- Dickenson could not have set up against Barton an adverse holding, and Smith, who claimed under him, must be considered as standing in the same situation,

2. Eleanor Gallaway was not an interested witness ; the verdict in this cause could never have been given in evidence, in an action of dower brought by her. But another answer to the objection is, that she was called to testify as to the time the deed was actually executed. Admitting it to have been antedated, it would be good and effectual from the time of its execution; an acknowledgment, therefore, at any time, duly made by her, would take away her right of dower; and if she never had legally acknowledged it, her signing would be no bar to her claim of dower, so that on no ground whatever could she be interested. She was not by her deed estopped from showing it to have been executed at a time different from the date. The date is unimportant. The execution and delivery is the important time from which a deed is to take effect. (2 Johns. Rep. 234. 4 East, 477. 3 Lev. 348.)

3. The declarations of Smith, while in possession of the premises, as to his title, were admissible against the defendant. These declarations would have been good against Smith, and are also competent evidence against all who claim under him. This principle has been repeatedly recognised, both in our own and. in the English courts. (1 Johns. Rep. 343. 1 Esp. Ca. 438. 2 Term Rep. 53.)

4. Whether the deed from Dickenson to Smith was actually executed at the time it bears date, was a question proper for the consideration of the jury. Some doubt may exist as to that fact. I am inclined, however, to think that the verdict is according to the Weight of evidence ; at all events, it ought not to be set aside on this ground.

' 5. The deed from Dickenson to Smith cannot, in its operation, relate back to the time the contract between them was made, so as to bring it within the scope of the decision in the case of Jackson v. Raymond.^* It is a general rule, with respect to the doctrine of relation, that it shall not dft Wrong to strangers ; as between the same_ parties it may be adopted for the advancement of justice. (3 Caines, 263.) Barton was a stranger to the contract between Dickenson and Smith, and it would be the extreme of injustice to permit his mortgage to be defeated, by considering Smith’s deed to take effect by relation, from the time he made his contract for the purchase of the premises.

6. There are no grounds, for any objection against the charge of the judge. The case was fairly submitted to the jury, with such observations as the testimony warranted.

On every ground, therefore, the motion for a new trial must-be denied.

Rule refused.

* 1 Johns. Cases, 85. note.