90 N.Y. 298 | NY | 1882
Very much of the argument for the defendant on this appeal is devoted to the questions of fact which we cannot review. Whether the deed from Jonathan Rogers to Nathaniel B. Pope, and that from the latter to the plaintiff *301 were in fraud of the defendant's equitable rights; whether he in fact was the real purchaser from Rogers, and paid the price of the twenty-five acres, and N.B. Pope, under pretense of acting for him, obtained the conveyance for himself, without the defendant's knowledge or consent, were questions sharply litigated on the trial, but settled for the purposes of this appeal by the verdict of the jury. We have no duty to perform except to examine and consider the exceptions taken during the progress of the trial, and urged here as grounds of reversal.
The most important of these arises upon the refusal of the trial court to permit the defendant to testify to the bargain which he made with Rogers for the purchase of the twenty-five acres, and which was founded upon the prohibitions of section 829 of the Code. At the time of the trial both N.B. Pope, who was the plaintiff's immediate grantor, and Jonathan Rogers, who conveyed to N.B. Pope, were dead; and the defendant contends that the personal transactions, as to which his mouth was closed, were those with the plaintiff's immediate grantor, and not those with the grantor of the latter. Under the language of the old Code there was authority for this doctrine. (§ 899; Prouty v.Eaton, 41 Barb. 409; Cary v. White,
Two other exceptions relate to the defendant's effort to prove not only that he boarded the workmen who put improvements on the land, but got no pay for such board, and that all his accumulated earnings, amounting to about $2,000, had gone into the house. It is sufficient to say that, having proved that he boarded the workmen, the presumption was that it was done at his own expense and it was not necessary to prove the negative that no one paid him for it until some counter evidence was given; and that while his wholesale statement that all his earnings went into the house was excluded, he was explicitly permitted to state in detail every dollar which he could remember to have so appropriated.
The further exceptions are criticisms upon the charge of the court, and respect the subject of constructive notice of defendant's alleged equitable title, derived from the fact of his possession at the date of plaintiff's deed. The trial court declined to give to defendant's bare possession the effect desired, and allowed such effect only as the result of his possession under his equitable title. It is insisted this was error. It might have been if defendant alone had been in actual possession. But that fact was rendered ambiguous as constructive notice by the concurrent fact of N.B. Pope's possession. Both, to all outside appearance, occupied the land, and which was the actual possessor, and which occupation was subordinate, and under the other could only be naturally inferred from knowledge of *303
the title. And when it appeared from the record that Pope had the deed, the proper inference was that defendant's possession was under Pope, and in subordination to the true title. It was said in Brown v. Volkening (
The judgment should be affirmed, with costs.
All concur, except MILLER and TRACY, JJ., not voting, and RAPALLO, J., absent.
Judgment affirmed.