Van Rensselaer v. Poucher

24 Wend. 315 | N.Y. Sup. Ct. | 1840

By the Court,

Cowen, J.

It is perfectly well settled that on oyer demanded, the party making profert must furnish a copy of the whole deed, including the attestation clause, witnesses, memoranda written at the bottom, and the like. In short, the act of furnishing a copy should be made, as nearly as possible, equivalent to the ancient practice, which was to bring the deed itself into court, where it continued a whole term for the party demanding oyer to inspect it as much as he pleased. Shep. Touch. 73. [ *320 ] Longmore v. Rogers, Willes, 288; Barnes, 283, S. C.; *nom. Longman v. Rogers. Comyn’s Dig. Plead. (P. 1.) This is highly reasonable ; for a deed may be much varied or qualified, indeed its meaning entirely chabged by papers endorsed, written below or annexed to it. The party in pleading it is never required to set out the whole deed, but only such parts as t'end to make out his case, and these not literally, but only according to their legal effect. Allowing him to judge what portions that remain are material for his adversary to see, would subject the latter to the decision of a very partial judge. The profert must be commensurate with the obligation; and it follows that it should have been general in this plea, including the schedules which make part of the deed, provided the defendant was bound to give oyer at all.

Whether the defendant was under obligation to give oyer in this case is the more material question. If he was not, his making profert will not raise an obligation. A stranger to a deed is not bound to give oyer; it is only a party or privy to the deed or to some estate or interest, affected by it, or one coming in and claiming in right of another who is a party or privy, who must do so, Shep. Touch. 73. Indeed the obligation can hardly be said to rest in all cases on mere privity. It seems rather to depend on the question whether the party pleading has come in conventionally as a privy, thus having it in his power to obtain the deed itself, or at least to provide for 'having the use of it whenever it may be necessary in an action or defence. It is not necessary to go over the cases. They are all collected in the later editions of Comyn's Digest. See Pleader, ( 0. 8,) and ( 0. 9.) A series of cases are there cited which are entirely conclusive against the demurrers in question. The deed from Penfield raised a privity of estate between the grantee Watts, and the defendant, which was continued between the defendant and the trustees under Watts’ will; but this was by operation of law. The defendant held no control over Van Rensselaer, the devisee, or Penfield, the purchaser. The estate held by each in the rent charged on the defendant’s land was transferrable at their pleasure, and would raise the relation of landlord and tenant between *them and the defendant for [ *321 ] the time being ; and that relation has finally been transferred to the trustees under the will of Watts. But it is impossible for the defendant to obtain the deeds of transfer or even a copy, without the consent of those who may have a right to them. The deed in question belongs to the trustees under Watts’ will, who may entirely withhold it from the defendant. There is no authority, at least no modern authority, and none that has not been overruled, which would require this defendant to give oyer under such circumstances. On the contrary,' several cases are cited by Comyn where persons who come in as privies by operation of law have been excused from giving oyer of the deeds under which they claimed: among them are guardians, tenants by statute merchant, staple or elegit, or in dower, and several stronger cases; though it is said a tenant by the curtesy pleading the deed of his wife must give oyer of that, though he is in by act of law ; for he shall be presumed to have it in his power. These instances are sufficient to illustrate the distinction; and at the same time to show the clear and strong reason on which it stands. See also Viner’s Ab. Faits (M. a. 14,) and (M. a. 15,) and Co. Litt. 225, a. and 225, b. A deed lost by accident may be pleaded even by a party to it, without profert. Read v. Brookman, 3 T. R. 151. The principle of that case lets in the like mode of pleading whenever it appears that the deed is beyond the party’s reach. There must be judgment for the defendant on the demurrers, with leave for the plaintiff to withdraw them, and reply on the usual terms.