O'Dougherty v. Aldrich, 5 Denio 385

O'Dougherty v. Aldrich

5 Denio 385 | N.Y. Sup. Ct. | 1848

By the Court, Whittlesey, J.

This is not a motion fcr a new trial in the court in which the trial took place, but it is a writ of error founded upon a bill of exceptions. The bill states that the court below refused to nonsuit the plaintiff or petitioner on the application of the defendant, but did after-wards grant the nonsuit at the request of the petitioner himself. I do not see how he can ask this court to pronounce the decision to be error which was made at his own request, after precisely such an order had been refused on the application of the defendant. I do not perceive that it makes any difference that the plaintiff supposed this to be the better mode of presenting the question to the supreme court, or that he said, proforma, that he did not consent to the nonsuit, so long as it appears that the court did nonsuit him at his request. A court of appellate jurisdiction cannot reverse a judgment of nonsuit which has been produced by the voluntary act of the plaintiff himself. (Van Wormer v. The Mayor of Albany, 18 Wend. 169.) The legal propositions are not the same as they would have been if the court below had not changed its decision at the request of the plaintiff. The grounds upon which the defendant asked for a nonsuit involved questions of fact as well as of law, and if it had been granted would have involved the judgment of the court upon the sufficiency of the evidence which had been adduced on the part of the plaintiff. There was evidence upon the subject which might with propriety, as the court thought, be left to the jury. It was in the power of the court to say un'loubtedly that the evidence sustained the grounds upon which *388the defendant asked for a nonsuit, but it might have been discreet to submit the question of fact to the jury. If submitted, to the jury, it could have been submitted under instructions defining what constituted possession in law, and asking the jury to find as to the facts. It would seem that the opinion of the court below was in favor of the defendant on all the points presented by him, that is, they thought the propositions submitted by him were sustained by the evidence, and that the legal effect of them would be to disallow the plaintiff’s claim.

The plaintiff, to make out his case, must show that he was either actually or constructively in possession; (2 R. S. 317, § 1;) and that the defendant Lewis Aldrich had not performed the conditions of the will. If he entered under the devise to him, a possession so acquired would be clearly adverse to any claim of title on the part of his brothers and sisters as heirs. If the brother who is the plaintiff’s grantor, is to be deemed to be out of the possession by the adverse possession of Lewis Aldrich, under the will, the conveyance to the plaintiff must for that reason be held void. If Lewis entered under the will, and remained in possession for years, claiming by virtue of the devise, but did not perform the conditions of the will, I apprehend that the heirs at law must establish the breach of condition, and their consequent right to enter for such breach by an ejectment against the party so in possession, and that they could not try the question of breach of condition in a suit for partition, as they would have no possession either actual or constructive to authorize them to maintain a suit in partition. (Jenkins v. Van Schaack, 3 Paige, 242; Clapp v. Bromagham, 9 Cowen’s Rep. 530.)

I should agree with the court below that the plaintiff failed to prove enough to show that either the plaintiff or his grantor were in possession, either actual or constructive, at the time of filing the petition; or that the defendant Lewis Aldrich had failed to perform the conditions of the will in such a manner as to defeat his title under it, and should have thought that the *389plaintiff was properly nonsuited on the merits. But whether this was so or not, as the nonsuit was granted at the request of the plaintiff himself, the judgment of the court below should be affirmed.

Judgment affirmed.