7 Wend. 136 | N.Y. Sup. Ct. | 1831
The principal question in this case is, whether the power of attorney from Treat and Morris to Boulogne was sufficiently proved. It was not produced, nor was any witness introduced who had ever seen it; but its existence, contents and destruction were shewn by the admissions of Morris, under whom the defendant claims. Hartshorne and Brush, two of the witnesses, were interested in the patent, having married neices of Treat, one of the patentees ; to both of them Morris admitted that a power of attorney had been given to Boulogne; to Hartshorne he admitted that a power had been given, that it contained authority to sell and convey, and that it was given up to be cancelled when Boulogne purchased the whole patent. In corroboration of the fact of such purchase having been made, Hartshorne states that he saw the bond and mortgage executed by Boulogne, and had them in his possession for some time as the agent for the administrator of Treat. The plaintiff produced a deed from Boulogne for six hundred acres to Le Fevre and D’Autremont. If Boulogne had authority from the patentees to execute that deed, then the grantees acquired title to so much land in that patent, unless the deed was void for the insufficiency of the description of the premises.
It is objected by the defendant that the plaintiff relies upon parol declarations of Morris, and insists that no man can be divested of his title to real estate by parol. That proposition is not denied : For i nstance, in this case title is shewn in Treat and Morris ; the plaintiff cannot shew title from them to the lessors, by proving that Treat and Morris admitted that the lessors were the owners. But I can see no reason why any fact, which can legally be proved by parol, may not be proved by the admissions of a party. There may be exceptions. There are cases where particular witnesses must be produced or their absence accounted for, as in the case of the subscribing witnesses to a deed. It cannot be denied that in this case it would have been competent for the plaintiff to have produced the witnesses to the power of attorney, and proved its existence and contents, after having shewn that it was lost or destroyed ; and such loss or destruction might have been proved by the oath of the party plaintiff himself, if the fact had been
The deed from Boulogne contained no description of the premises in question, but it conveyed to the grantees the quantity of land contained in it, six hundred acres ; a location was subsequently made by the acts of the parties. The deed made the grantees tenants in common with the patentees ; and the proceedings locating the right of the grantees operated as a parol partition. In Jackson v. Harder, 4 Johns. R. 212, this court said that a parol partition carried into effect by possessions taken according to it, will be sufficient to sever the possessions as between tenants in common; and in Jackson v. Vosburgh, 9 Johns. R. 276, they say : “ There is no doubt but that were the title is admitted to have been in common, a parol partition followed up by possession will be valid, and sufficient to sever the possession.” Here the title is not now
From the testimony respecting the possession it appears that Le Fevre did what he thought necessary to take possession of the lots selected by him; and that a tenant of Garnsey was in possession when Livingston purchased the lot. Since 1809 the possession has been held sometimes by the plaintiff, and sometimes by the defendant. The rights of the parties are, however, not controlled by possession. The main questions in controversy are, whether the plaintiff’s deed was executed by a person having a lawful authority to convey ? whether legal evidence of that authority has been reduced? and whether the premises have been designated by the acts of the parties ? On these questions I think the plaintiff must succeed.
New trial denied .
See Jackson v. Lawson, 15 Johns. R. 539, and Saltern v. Melhuish, Ambler, 247