Ungles v. Graves

2 Blackf. 191 | Ind. | 1828

Holman, J.

Graves obtained 3 judgment before a justice of the peace against Rufus Jennison. On,this judgment he took out an execution, which .he placed in the hands of Ungles, a constable. Ungles returned, that, out of the property of said Jennison, he,had made tbe sum of 57 dollars and 31 cents; all of which, except the costs, he had paid to Samuel Jennison, on notice: which notice, being a claim of said Samu.el Jennison’’s to the .sum'of 75 dollars, for two quarters’ rent of the premises on which the property was executed, was made a part of the constable’s return. s Graves then sued out a scire facias, requir-, ing Ungles to show cause why he should not pay, on said execution, the money thus paid to Samuel Jennison. To this scire facias, the notice and claim of Samuel Jennison were pleaded; with .an averment that the said Samuel Jennison,'the landlord of the premises on which the property was executed, proved to the satisfaction of the constable, that he, as landlord, was entitled to said money for rent then due, which money, w.as paid accordingly. The justice of the peace gave judgment in favour of Ungles. Graves appealed to the Circuit Court, and obtained a judgment against Ungles for the amount thus paid" to the landlord.

By a hill of exceptions we learn, that, on .the trial before the Circuit Court, Ungles introduced a patent from the United States to David■ E. Wade, for the premises on which the property was executed; and offered in evidence a deed from Wade to Samuel Jennison for -the said premises, attested by Isaac G. Burnett and William Jones, and acknowledged before Isaac G. Burnett, may-°r ^nc^nnat0 which deed was rejected by the Circuit Court. He then proved by Rufus Jennisorf, that Wade signed, sealed, and acknowledged said deed; and that Isaac Q. Burnett and ^!'am Jones, who now reside in the city of Cincinnati, state of Ohio, subscribed their names as witnesses to said deed in his presence. This evidence was also rejected by the Circuit Court; but we think it should have been admitted.

Brozan, for the plaintiff. Fletcher, for the defendant,

A constable, though not named, is, virtually, within the provisions of the act of assembly, that requires sheriffs to pay rent due on demised premises, before property taken in execution on said. premises is removed; and, when sued for paying rent improperly, he is bound to give some evidence that the rent was due. 3 Stark. Ev. 1354.—Keightley v. Birch, 3 Campb. 521. The landlord’s title to the premises, is a principal feature in the officer’s defence ; and we think the deed from Wade to Samuel Jennison, was sufficiently proved by the testimony of Rufus Jennison. When the subscribing-witnesses to a deed reside in another state, proof of their hand-writing is generally .deemed sufficient. In some cases, however, proof of the handwriting of the obligor or grantor has also been required. Ip this case, the evidence embraces both these requisitions. Rufus Jennison, who is a competent witness, testifies to the execution of the deed by Wade, and to the attestation of it by the subscribing-witnesses in his presence; which fully answers all that is required in any case we have yet seen. See a variety pf cases on this subject cited in 1 Stark. Ev. 338—342.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.