37 Barb. 258 | N.Y. Sup. Ct. | 1862
The action was brought to recover an undivided one-sixth part of a farm of about 130 acres, situated in the town of Canandaigua, in the county of Ontario. The plaintiff derived his title through the will of John Taylor, dated October 30, 1824, the said John Taylor being then and at the time of his death, which took place twenty years before the trial, the owner and in possession of the farm. By
The- defense was an outstanding title in Charles Mosher. On the 12th of April, 1844, the plaintiff mortgaged the premises in question to Philemon Stiles, to secure a debt of $75 ; and on the 9th of May, 1844, the plaintiff executed another mortgage to said Stiles to secure another debt of $112. In 1853 both of these mortgages were foreclosed, under the statute, by advertisement, in one foreclosure proceeding, and sold to Charles Mosher for $358.21, the affidavit of the sale stating that he purchased for the heirs at law of Philemon Stiles, deceased. In reply to these facts, the plaintiff alleged that he had paid both mortgages to Philemon Stiles in his lifetime. To prove this payment he offered himself as a witness, to which the defendant’s counsel objected, on the ground that the witness so offered was the plaintiff in the action, and that Philemon Stiles being dead, the plaintiff was not a competent witness to prove the payment to -the deceased mortgagee in his lifetime. The court overruled the objection, and the defendant’s counsel duly excepted. The witness then testified to the payment of both mortgages to said Philemon Stiles in his lifetime. One of the points now made by the defendant’s counsel is that the justice, on the trial, -erred in admitting this evidence by the plaintiff as a witness.
Section 399 of the code, as amended in 1860, (Sess. Laws
It seems to me that the case is not within the above exception. It excludes witnesses who are parties to the action from being examined against parties who are representatives of a deceased party, in respect to transactions had personally between the deceased person and the witness. But the plaintiff was not examined against a party who was the representative of a deceased person. The defendant was the party against whom the plaintiff was examined, and he was in no sense such representative. He was in no way connected with the representative of Philemon Stiles, deceased, or his title, or that of his administrator. He was an entire stranger to the alleged titles of both parties, and the evidence produced by him was for the purpose of showing an outstanding title merely, without in any way. connecting himself with it.
The actual payment by the plaintiff to Philemon Stiles of the amounts secured by the mortgages was somewhat seriously brought in question by the evidence, and if the jury had found against the payment the court, I think, would not have set the verdict aside, as being against the weight of evidence on that question. In order to corroborate his own testimony of the payment, the plaintiff gave evidence, under objection, of the declarations and admissions of Stiles in his lifetime, tending to show part payment of one or both of the mortgages .by the plaintiff. The ruling of the justice admitting this evidence was duly excepted to by the defendant’s counsel.
In the case at bar, the evidence was given not against a subsequent purchaser or assignee for value. The defendant was in possession, so far as the case discloses, without title or right. His defense was an outstanding title in Mosher or the heirs of Stiles, with which title he was in no way connected. I am therefore of the opinion that the evidence was properly received. .
The other rulings at the circuit were unobjectionable, and a new trial should therefore be denied.
The action was ejectment. After the plaintiff had established his title to one undivided sixth of the premises, the defendant, for the purpose of defeating it, and showing an outstanding title derived from the plaintiff, proved two mortgages of the same interest, from the plaintiff, to
He further proved that both thesemortgages, by virtue of a power contained in each, had been foreclosed by advertisement and sale pursuant to statute, and the premises bid off by the administrator of Philemon Stiles, the mortgagee,- deceased, for the heirs of the intestate, on the 13th of October, 1853.
In answer to this evidence, the plaintiff gave evidence tending to show that both mortgages had been fully paid and satisfied to the mortgagee, in his lifetime. The plaintiff in his own behalf testified to the fact of having made the payment in person. He then proved, by another witness, certain admissions made by Stiles, the mortgagee, in February, 1847, as to the amount then remaining due upon the mortgages, and the amount which had before that time been paid thereon, and also a promise to extend the time of payment of the balance through the following season. This evidence was objected to by the defendant’s counsel, in due time, and admitted by the judge, to which ruling there was an exception.
The defendant did not claim title, through these mortgages, or through the mortgagee, and does not appear from the evidence, in the case, to have had any interest in, or connection with, the mortgages or the mortgage debt, at any time. The mortgagee died the year previous to the foreclosure of the mortgages, and the mortgages were forclosed by his administrator.
One exception, to the general rule, rejecting hearsay evidence, which seems to be as well established as any rule of evidence in the books upon the subject of evidence, is that of allowing declarations and entries made by persons since deceased, and against the interest of the persons making • them, at the -time they were made. (Greenl. Ev. §§ 147, 148 to 154, and cases cited in notes. 1 Phil. Ev. 255. 1 Stark. Ev. 307, 308, 309.) In such case, the objection
Our courts in this state, however, have uniformly held that the admissions of a former owner of chattels, or choses in action, are not admissible, as against a subsequent purchaser or assignee, from such owner for value, whether such owner were living or dead at the time the evidence was offered. This is the extent to which the courts have gone, and all the cases are of this character. (Foster v. Beals, 21 N. Y. R. 247. Tousley v. Barry, 16 id. 497, Booth v. Swezey, 4 Seld. 276. Smith v. Webb, 1 Barb. 230. Paige v. Cagwin, 7 Hill, 361. Beach v. Wise, 1 id. 612. Whitaker v. Brown, 8 Wend. 490. Kent v. Walton, 7 id. 256.) There are several other cases, but they are all of this description; and no case can be found in our reports carrying the rule of exclusion, or rather limiting the exception, beyond this precise point. And even this has been said by several of our judges to be a departure from a well established rule, and to have carried the doctrine quite far enough. (Bronson, J. in Beach v. Wise, supra. Walworth, Ch. in Christie v. Bishop, 1 Barb. Ch. R. 115, 116. Ruggles, Ch. J. in Jermain v. Denniston, 2 Seld. 278.)
The defendant, it will be seen, is not within this rule at all. He is not an assignee of the mortgage, nor a purchaser under it, nor a purchaser from the mortgagee. His title is in no way whatever connected with the mortgage, and these declarations were not given to defeat the defendant’s title, but to prevent the defendant from defeating the plaintiff’s. Had the defendant been an assignee of the mortgage, or a purchaser at the mortgage sale, the objection to the evidence would have come precisely within Tousley v. Barry. and Booth v. Swezey. But he stands in no such situation, and, it seems to me, most clearly is not entitled to the benefit of that rule, except as a shield to any title he may have derived through the mortgage.
It is insisted by the plaintiff’s counsel that to render such
The admission of the testimony of the plaintiff as to the payments, made by him to Stiles, was also excepted to, and the exception is insisted upon here. But it seems to me to be clearly without any foundation. He was a competent witness in his own behalf, and the defendant was not -the representative of a deceased party.
I am of the opinion, therefore, that the judgment should be affirmed.
E. Darwin Smith, J. concurred.
Judgment affirmed.
Welles, E. Darwin Smith and Johnson, Justices.]