1 Whart. 303 | Pa. | 1836
The admission of the evidence complained of in the first error assigned, was certainly right. The circumstance of another action pending between the parties for the same cause, was not a sufficient objection to it. If two actions be brought for the same cause at the same time by the plaintiff against the defendant, he may plead the one in abatement of the other, and by this means abate them both. Pie v. Cook, (Hob. 128. S. C. Moore, 864, pl. 1193.) 1 Roll, Abr. 353. 39 H. 6, 13. pl. 16 per Prisot, Justice, cited 5 Mass. 179, in note. Mayor, &c. v. B. (1 Freem. 401. pl. 526. S. C. 3 Keb. 491.) 3 Burr. 1434. Com. Dig. Tit. Abatement, Ib. 24. Beach v. Norton, (8 Conn. 71.) But if one action be commenced before the other, the defendant may abate the second by pleading the pendency of the first; and unless he plead it in abatement, he cannot take advantage of it, because it forms no bar to the plaintiff’s
The second error is not sustained either: because even admitting that the Court were wrong in refusing to permit the receipt to be read in evidence, still they may be • considered as having corrected their error afterwards, by admitting it. The counsel for the plaintiffs in error, however, allege, that their clients were prejudiced, notwithstanding the subsequent admission of the receipt in evidence: because in consequence of the Court’s refusing to permit the receipt to go in evidence to the jury when first offered, they say, that they were compelled to adduce John Lentz, jr. as their witness, who was unfavourably disposed towards them, and in his testimony gave a colouring to the case, in some respects, that was untrue and calculated to prejudice the jury against them: also, that the plaintiff below, who, as they believe, intended to adduce Lentz as a witness on his behalf, by this gained an advantage that he could not have had in case he had called him first, by drawing from him all the testimony he wished, in answers to hading questions. It may be that it was no disadvantage to the plaintiff below, that the plaintiffs in error called John Lentz, jr. as their witness, but still it cannot be said with propriety, that the Court below compelled them to do so. If they were convinced that the Court was wrong in refusing to permit the receipt to be read in evidence when first offered, they ought, after taking their bill of exceptions to the opinion of the Court in this behalf, to have passed Lentz by, and to have proceeded with their other evidence; and if they lost the cause, then to have brought their writ of error. It will not do then, to say that they were forced by the decision of the Court, to call Lentz as their witness, because it was clearly at their option to do so or not as they pleased.
But seeing that there was no evidence given, when the receipt was first offered, tending to show that it was given, or had an existence before the trespass was alleged to have been committed, I am inclined to think that the Court was right in rejecting it; for to have admitted it to be read in evidence to the jury upon proof merely that John Lentz junior’s name, which was subscribed to it, was in his handwriting, would have been a pretty dangerous kind
We also think there is nothing in the third error assigned. As Lafferty, the plaintiff- below, was no party to the receipt, he was not estopped from gainsaying the truth of the matters alleged in it. It was competent therefore for him to show, if he could, that it was all a fiction, or a contrivance between Krider and Lentz, made for the purpose of defrauding him of his just rights: and this he was at liberty to show by the evidence of Lentz himself, as well as that of any other; for Lentz, not being a party to the suit, could be coerced at the instance of either party, to testify to any thing within his knowledge that was material to the issue. If the receipt was a misrepresentation of the matters set forth in it, no one could know it better than Lentz; and therefore as regarded knowledge on the subject, no body could be better qualified to testify: And even if it had been concocted for a fraudulent purpose, he would have been bound to have disclosed it, provided it were material to the issue: His being a party to the fraud, would not have excused him from giving evidence of it, as long as it were of such a nature as would not subject him to criminal punishment.
The authorities cited by the counsel for the plaintiffs in error, showing that written agreements or instruments cannot be altered, changed or contradicted, have not the least application: the rule laid down by them is only applicable to cases of controversies between the parties to the agreements, their representatives, and those claiming under them, but not to strangers; whose rights and interests would truly be in peril if the rule were to be extended to them, in such manner as to conclude them from giving evidence tending to contradict such agreements.
The fourth error embraces the answers of the Court to six points submitted on the trial by the counsel for the plaintiffs in error; in each of which they allege the Court erred. • • •
The first is, as to the effect of the deed given in evidence by the plaintiff, as evidence of his title to the locus in quo. The counsel of the plaintiffs in error, requested the Court to instruct the jury that it conveyed a fee simple to the defendant in error; but the Court entertaining a different opinion, told the jury that it did not pass a fee. In this I think the Court was mistaken; for the deed in express terms passes the land to Lafferty, his legal heirs and representatives, re
The counsel for the plaintiff in error'also, in reference to this deed, requested the Court to instruct the jury, that if it were not a conveyance of the fee simple, but a mere lease of the land, it was void for uncertainty, on account of the time of its duration not being mentioned. The Court, however, declined giving such instruction to the jury; and on the contrary advised them, that taking the deed in connexion with the conduct of the parties, of which they had parol evidence given to them, they might consider it a lease from year to year: this is also complained of by the plaintiffs in error, as being incorrect; ' and no doubt it is so, as has already been shown in the opinion advanced, that a fee simple passed by the deed. If, however, the counsel had asked the Court to instruct the jury, that the deed was void for uncertainty, in not describing the land intended to be conveyed, so as to enable its precise location to be ascertained, there would have been more colour for it at least. But still I do not think that they would have been available: for notwithstanding this uncertainty, yet it was capable of being rendered certain by the subsequent act of the parties, if not by the act of the vendor alone. For instance, if one grant me three acres of wood toward the north side of his wood, this is a good grant and certain enough. Shep. Touch. Tit. Grant, page 250. So if one be seized of two acres of land, and he doth lease them for life, and grant the remainder of one of them, but doth not say which, to J. S.; in this case if J. S. makes his election, as to which he will have, the grant of the remainder to him will be good: or if a man having six horses in his stable, grants me one of them, without saying which, I may choose which I will have; and having made my election, and not before, the grant is good. See Shep. Touch. Tit. Grant, page 251. Perkins, sec. 74, 76. According to the principles of these authorities, the location of the land granted by the deed, was reduced to certainty afterwards, by the act of the parties in setting it offby metes and boundaries, and by the act of the grantee in taking possession of it in the lifetime of the grantor, by and with his consent.
But, still, notwithstanding the Court erred in their instruction to the jury as to the nature and effect of the deed, it becomes neces
Admitting the distinction taken by the counsel for the plaintiffs in error, between a tenant in fee and a tenant from year to year, to exist in favour of a bona fide purchaser for a valuable consideration, still with what propriety could the counsel ask the Court to assume the fact, contrary as I conceive, to the testimony of the witnesses on both sides, that Krider was such a purchaser; and to instruct the jury that the title of Lafferty must, therefore, give way to him. This, had the Court done so, would not only in effect have been a withdrawal of the decision of a matter of fact from the jury, but would have been a decision of it by the Court, contrary to a body of evidence, which went to prove very clearly, that the fact was otherwise. Though Lafferty had never put his deed on record, yet it appears from the testimony of the witnesses of both parties, that he had been in the actual possession and enjoyment of the acre of land from the year 1816 to the time of the trial, and of course was in the actual possession thereof, at the time Krider became the purchaser. When Lafferty bought, it was meadow, and part of a larger tract of land, owned by John Lentz at the time. Lafferty, it seems, was a basket-maker; and immediately after his purchase, the ground being set apart from that owned by Lentz, he took possession of it, planted it with willows, for the purpose of supplying himself with materials to carry on the business of his trade, and continued to occupy it, growing willows upon it, and cutting them every year at the proper season. This visible change in the appearance and occupation of the ground could not wrell fail to attract the notice of the neighbourhood; and hence it would seem, that all the witnesses who had resided within the same, for any length of time, had become acquainted with Lafferty’s occupation of the ground. His possession then being sufficiently distinct to be notorious, was sufficient to put Krider upon his inquiry, as to the right, under which Lafferty held the possession of the land; and being sufficient for that purpose was good notice in equity. Smith v. Lowe, 1 Atk. 490. Sug. Vend. 743. This case, as presented by the evidence, is not like the case of Billington v. Welsh, (5 Binn. 129,) to which it has been compared by the counsel for the plaintiffs in error. Welsh had never had the fifty acres of land, which he alleged he bought of
As Lafferty acquired a fee simple estate in the acre of land, on which the trespass is alleged to have been committed, by the deed from Lentz to him, the questions embraced in the 3d and 4th points submitted by the counsel for the plaintiffs in error, to the Court below, were not material to the issue, and, therefore, require no further notice.
In regard to the 5th point: we think there was no ground whatever for asking the Court to instruct the jury, as was done by it, that in case they found for the plaintiff below, the damages ought to be merely nominal; as the trespass committed, if any, was unintentional. Krider, one of the plaintiffs in error, under whose authority the others acted, being notified expressly by Lafferty of his right to the land and the willows, persisted in going on with the trespass and taking the willows away, after they were cut, in place of tendering amends for the injury done. It was certainly not an unintentional trespass, but one of design, committed under colour of right, which has been attempted to be vindicated throughout: Lafferty, beside the loss of his property, must have been put to considerable expense in asserting and establishing his right: and I am, therefore, not satisfied, but it was a proper case enough, to be left by the Court to the jury, to decide whether damages beyond the value of the willows taken, and the injury done, if any, to the freehold, ought not to be given : nominal damages, merely, were out of the question; for it would have been error, as it appears to me, in the Court, to have suggested less than compensatory.
In regard to the sixth point; Lafferty being held to be the owner
The judgment is affirmed.