Jackson v. Perkins, 2 Wend. 308

Jackson v. Perkins

2 Wend. 308 | N.Y. Sup. Ct. | 1829

By the Court, Sutherland, J.

The first question in this ease is, whether the deposition of Mrs." Visscher was properly admitted in evidence. The judge permitted it to be read upon the stipulation of the plaintiff’s counsel that a judgment of nonsuit might be entered, if the supreme court, upon a case made, should be of opinion that the deposition ought not to have been receivéd. It was taken under the act “ to perpetuate the testimony of witnesses in certain cases,” (1 R. L. 455.) It was objected to on three grounds : 1. Because the affidavit of Ten Eyck, upon whose application the order for the examination of Mrs. Visscher was made, did not state that the witness would probably be unable to attend on the trial of the cause ; 2. Because the order of the commission*316cr, directing notice of the intended examination to be given to the defendant, did not specify the number of days for which notice should be given ; 3. Because the inability of ^he witness, by reason of age or infirmity, to attend in person, was not sufficiently proved at the trial. The act does not require any evidence to be exhibited to the commissioner of the probable inability of the witness to attend the trial before he makes the order for his examination. The object of the act appears to have been to enable parties to suits affecting the title to land to guard against the death or insanity of their witnesses, or their inability to attend court, by reason of age or infirmity. The deposition may be taken even before any suit is commenced. The act is not confined to any particular class of witnesses; it embraces all; those in the strength and vigor of manhood, as well as the aged and infirm. Upon the trial, it must be shown that the witness is dead, or is unable to attend, by reason of age or settled infirmity, or some other cause, which, in all human probability, will continue permanently to operate, or his deposition cannot be read.

The correct practice is, undoubtedly, for the commissioner to specify in his order the number of days for which notice is to be given. The act prescribes that he shall direct reasonable notice, not less than 14 days, to be given; the order was dated the -26th of March, and directed notice to be given that the witness would be examined on the 23d of April ensuing. The notice was actually served on the 30th of March, 24 days before the examination, and the defendant appeared by his counsel, and cross-examined the witness. Admitting the order to have been defective, it was cured by the defendant’s appearance. But I am inclined to think the order and notice were good, independent of the appearance. Where no time is specified in the order, the, notice must be for at least 14 days, the time mentioned in the act, and the commissioner must be understood as deeming that a reasonable notice, under the circumstances of the case.

The evidence of the inability of the witness to attend the circuit was sufficient. She was more than 74 years of age, and one of the witnesses testified, that from his knowledge of *317her situation and infirmities, he believed she could not endure the fatigue of a journey from Albany to Ogdensburgh with- ■ out the most serious hazard to her health. This was sufficient. No witness is bound to endanger his life by his attendance at court; the law does not exact it. The deposition, therefore, was properly admitted in evidence.

But the material question in the case is, whether the deed from Sebastian and Ann Visscher to Lydia Visscher, their mother, of the 13 th of March, 1800, was delivered to and accepted by the grantee. It is not denied that such delivery and acceptance are essential to its effect as a valid deed. (4 Johns. R. 230. 13 Johns. R. 418, 536. 1 Johns. C. 114, 250. 6 Cowen, 617. 20 Johns. R. 187, 8.) The only evidence of the delivery of the deed is the proof of its execution by one of the subscribing witnesses before a master in chancery, taken under the statute, for the purpose of putting it upon record. That proof is in the usual form. The master certifies, that the witness being duly sworn did say, that he saw Sebastian Visscher and Ann Visscher, whom he knew to be the persons described in the conveyance, voluntarily execute the same for the uses therein mentioned, as their act and deed, and that he, together with John F. Willett, subscribed the same as a witness thereto. The acknowledgment or proof of a deed relates only to the act of the grantor. A recorded deed may be used as evidence without further proof. The act, therefore, renders it necessary that the genuineness of the instrument shall be established either by the acknowledgment of the grantor, or the evidence of one of the subscribing witnesses before a competent officer, and that such acknowledgment or proof shall be endorsed upon the deed before it can be recorded ; but this proof or acknowledgment is ex parte, and any person who may be affected by the deed may, at any time, question its validity, and shew that in fact it was not duly executed or delivered. (4 Johns. R. 161. 12 id. 469.) We all know that, in practice, the witnesses to its execution rarely see it delivered. The delivery is a subsequent act, to which witnesses are not ordinarily Called, and which is *318usually proved by the fact of the grantee having the deed ns his possession, or by other circumstances tending to the same conclusion. (Jackson v. Bodle, 20 Johns. R. 187, 8.) Proof °f the due execution of a deed, and of its having been recorded, is perhaps prima facie evidence of its delivery ; but it would be subversive of all principle to hold the nominal grantee concluded by these acts, all of which may be performed by the grantor, without the knowledge, privity or consent of the grantee. It is true, that in pleadings it is not necessary to aver in .terms either the sealing or the delivery of a deed ¿ they are both implied in the term deed or writing obligatory. But this is merely a rule of pleading, and does not determine the question as to what shall be evidence of the sealing or delivery upon the trial. (1 Chitty's Pl. 351. Cro. El. 737, 8. Cro. Jac. 420. 2 Strange, 814, and cases there cited. 7 T. R. 596.)

Mrs. Visscher was a competent witness to prove that the deed never was delivered to her. She swore directly against her own interest.

The doctrine of estoppel is not applicable to the case. The defendant does not claim under Mrs. Ten Eyck or Mrs. . Visscher, through the deed in question, or in any other manner. Whether, as between the grantors and the grantee, it would be competent for the grantors to deny the delivery of the deed under the circumstances, it is not necessary to determine ; but where, as in this case, the title alleged to have been conveyed by the deed is set up, not by a party claiming under it, but as an outstanding title in a third person, with xvhich the defendant has no connection, it must be competent for the lessor to shexv that the deed never was delivered, and, of course, never became effectual.

The verdict of the jury upon the question of the delivery of the deed appears to me to be entirely against the weight of evidence. Mrs. Visscher is a witness above all suspicion ; there is nothing to shexv that her faculties are impaired by age or disease, or that, from any other circumstance, the most implicit reliance is not to be placed upon her testimony. She swears positively that the deed in question never was delivered to her, and that she never heard of its having been *319executed, either from her- children or any one else ; that it was never in her possession, nor did she ever know of its having been in the possession of either of her children.

There are, undoubtedly, mysterious circumstances attending this case, and the imagination may indulge in conjecture as to the motives which may have actuated the parties, or as to the real truth of the transaction; but it is the duty of the jury to decide according to the weight of legal evidence. I am, therefore, of opinion that a new trial should be granted.