40 Barb. 537 | N.Y. Sup. Ct. | 1863
This action is brought to recover the possession of some seven acres of land situate in what was formerly the town of Plattekill in the county of Ulster. The plaintiffs are the children and heirs at law of Peter W. Traphagen deceased, who was son of James Traphagen deceased. The action was commenced on the 18th March, 1858. Henry Traphagen, the defendant, is also son of James Traphagen. He entered into possession of the premises under the parol agreement with his father hereinaf
Under the practice as sanctioned by the code, the defendant in an action to recover the possession of lands may rely upon any equitable defense he may have. If he holds under an agreement to purchase he may set up in his defense the same facts which in a court of equity would entitle him to a conveyance of the land. The court now take cognizance of both classes of actions, and may apply both legal and equitable remedies in the same action, and to the same subject matter. (Crary v. Goodman, 2 Kern. 266.)
The proof shows, and so the referee finds, that in April or March, 1838, Henry Traphagen, at the request of his father James Traphagen, from whom both parties deduce title, became the purchaser of the.homestead farm, for which he was to board James Traphagen and wife during their lives and pay to James the sum of $30 yearly and every year during life. He was also to board his sister Maria for such term of time as she chose to remain.with him. He was also to pay a debt due by James to one Henry Traphagen for $755, and another debt due from him to one Reuben Ostrander, for $300. He
Benjamin Traphagen, a witness called by the defendant, was asked upon his cross-examination by the counsel for the plaintiffs, “ When in 1838 the farms were marked off and the legacies mentioned, what was the understanding between your father and your brothers, Peter, Henry and yourself, when your father was to give his sons the titles to the farms ?” This question was objected to, and the objection sustained, and the plaintiff excepted. The ground of the objection was not stated, but it is. obvious enough. It sought to elicit what the witness understood, and not what the interlocutors said, and therefore I think it was properly overruled. Had it been answered, however, the defendant’s title would have remained the same, as the father, James Traphagen, died without having executed any of the deeds.
The testimony of the defendant Henry Traphagen was received by the referee, against the plaintiff’s objection, as being incompetent to give evidence of a transaction between James Traphagen and himself. This assumes that the plaintiffs are representatives of the former, within the meaning of section 399 of the code, which I think they are not. They claim the lands as heirs at law of Peter W. Traphagen, to whom they allege they were devised by James Traphagen.
The judgment should be affirmed.
Brown, Scrugham and Lott, Justices.]