3 Wend. 180 | N.Y. Sup. Ct. | 1829
By the Court,
It is objected to the competency of Seth Hunt to testify as a witness in this cause, that he he is interested, having conveyed the premises in question to Hussey, through whom the lessors of the the plaintiff derive title, with a covenant of warranty. The warranty is against all persons claiming under himself or Hontresor, to whom the lot in question was conveyed on a partition among the original proprietors. This covenant was intended to protect Hussey against any claims under an older or better title than Hunt had conveyed. In the suit for the recovery of the possession of the land by his grantee, Hunt had no interest. He could neither be a gainer or loser by the event; ■ nor could the verdict be given in evidence for or against him. Had the vendee of Hunt gone into possession under his conveyance, and an action had been commenced against him for the premises by a third person, Hunt could not have been a witness to. support the title of his vendee. (2 Rolle’s Abr. 685.) But here the action was by the vendee to obtain possession ; and a failure in the suit could by no possibility subject Hunt to liability, as he would not be liable under his covenant though it had appeared that he had no title when he conveyed ; his liability attaching only in case of an eviction. after possession obtained. (11 Johns. R. 122.) • The.
If right in this conclusion, it becomes unimportant to decide whether the release was properly excluded or not. However, according to the established rules of evidence, where an instrument under seal is executed in presence of a subscribing witness, that witness must be produced if within the jurisdiction of the court. If the release had been necessary, the judge was. correct in requiring, the production of the subscribing witness.
Hunt being considered a competent witness, he proves the existence and loss of the deeds necessary to vest the title in himself, and proves the contents by reference to the exemplifications. Strictly the judge was correct in excluding the exemplifications as records. The title should be recorded in the county where the land. lies, and then the exemplification of a deed is evidence without accounting for the non-production of the original. In this: case, having proved the former existence of the deeds in question, and their loss, the plaintiff was at liberty to give parol evidence of their contents. This he did do, and more also. He produced the only copy which could be produced; and in my judgment it was competent evidence to go to the jury.
. The deposition of Hunt, in construction with the deeds produced and those lost, seem to me to make out a prima facie case for the plaintiff. The judge was correct in my opinion in rejecting the deposition of Mr. Harrison. For aught that appeared, he might, although 80 years of age, have attended the court. At all events, the judge was not bound to presume him unable to attend. The plaintiff should not rely upon presumption where it was his duty to produce proof.
I am accordingly of opinion that the nonsuit be set aside, and a new trial granted, with costs to abide the event.