| N.Y. Sup. Ct. | May 15, 1810
Assuming that the plaintiff made out, in the first instance, a prima facie evidence of good title, the validity of the defence turned upon the point of the competency of the parol proof of the lease and its. assignments. The lease belonged to the plaintiff, upon the. statement of the case, and was -in his possession previous to the circuit in 1808. Notice was given to. him, previous to. that circuit, to produce it upon the trial. The cause was not tried until the circuit in 1809, but the effect of the notice was not spent. It applied to the trial, without reference to the time. It does not appear, that the cause was noticed for trial in 1808; and if it had so appeared, it would not have destroyed the effect pf the notice, in reference to a subsequent circuit, unless it had appeared that the notice was special, and confined to that particular circuit.
The object of the notice was general, and to. inform the plaintiff that the lease in his possession would be
If, after such notice given, the plaintiff had parted with the lease, he ought to have apprized the defendant of it, so that he might know where to look for it. In this case, the lease was in the court of chancery ; but as it does not appear by what means it came there, we must presume it was placed there at the instance of the plaintiff, and was liable to be withdrawn upon his application. For the purposes of the notice, it was still to be considered as under his control, and in his possession.
If the parol proof was admissible, then the defendant showed that O’Reilly had no title. His wife had only a life estate, and after her death the title under the lease reverted back to Henry Shearman, under whom, as his son and heir, the defendant possessed.
The next point in the case is, as to the acknowledgments of Henry Shearman. These acknowledgments of the party, as to title to real property, are generally a dangerous species of evidence ; and though good to support a tenancy, or to satisfy doubts in cases of possession, they ought not to be received as evidence of title. This would be to counteract the beneficial purposes of the statute of frauds. The extent of the title transferred from Shearman to his daughter, and from her to O’Reilly, rested upon higher evidence than upon parol proof of acknowledgments by the party. It rested upon the written assignments of the lease, and the legal evidence of the extent and effect of these assignments ought to prevail.
The court are, therefore, of the opinion, that judgment ought to be given for the defendant.
Judgment for the defendant.