6 Paige Ch. 323 | New York Court of Chancery | 1837
The first question presented by this case is as to the right of the defendants to give in evidence the declarations of John Tibbitts and Wesson Briggs as to the giving up the alleged deed of 1802. The declarations of Tibbitts, after he had conveyed to Briggs in 1810 with warranty, are not admissible in evidence for any purpose whatever, as against a person claiming title under that conveyance. The declarations of Briggs, however, which were made previous to the giving of the mortgage to Varick, and while he was in possession claiming title to the premises under the deed of 1810, are competent evidence against any person claiming under or through him by a subsequent conveyance, to show that the premises had been previously conveyed to his wife, and to show what had become of her deed. (Corbin v. Jackson, ex dem. Garnsey, 14 Wend. Rep. 619.) In this case the declarations of Briggs, when taken in connection with the testimony of Elisha Tibbitts and of the subscribing witness to the deed of 1810, establish the fact that there was a deed from J. Tibbitts to Mrs. Briggs for the whole lot in 1802, and which deed was either destroyed at the time the new deed was given in 1810, or was delivered up to Tibbitts to be cancelled. And the testimony of Conant and wife and of the widow of Briggs was sufficient evidence of the loss or destruction to authorize the introduction of parol proof of the existence and contents of both deeds to Mrs. Briggs. The contents of the first deed are established by the testimony of two witnesses, and its precise date is ascertained by a reference to the deed to Elisha Tibbitts which was executed at the same time. The date of the other deed becomes material in reference to the recording acts: and I shall have occasion to advert to the testimony on that subject more particularly hereafter.
The next question that presents itself is as to the effect of the recording acts upon the rights of the parties under
At the time of the giving of the deed of 1802 the premises were in the county of St. Lawrence, which was taken from Clinton and erected into a new county by the act of the third of March, 1802. (3 Webster’s ed. of Laws, p. 5.) If the act of April, 1798, which in terms applied to all lands situate in the county of Oneida at the time of passing that act, had not been repealed, as to all future conveyances of lands in the now county of St. Lawrence, at the time that tract of country was taken from Oneida and annexed to Clinton, it might very reasonably have been contended that deeds executed after the first of October, 1801, of lands situated in that part of Clinton county, must still be recorded in the clerk’s office of the county where such lands were situated at the time of the execution or recording of such conveyances, in order to render them valid as against subsequent purchasers and mortgagees. And such I believe is the construction which has been given to the recording acts, where a recording county has been divided without making any new provision as to the recording of future conveyances. But as the act of 1798 was repealed on the first of October, 1801, and the new recording act, which was substituted in the place thereof as to all future conveyances, only applied to the county of Oneida as organized by the act of the 3d of March, 1801, there was no recording act which was applicable to any conveyances of the premises in question, except mortgages, between the first
The reasonable presumption from the facts in this case is, that the deed of 1802 was destroyed at the time of the
A general decree, dismissing the bill against the defendants, who are heirs of their father as well as of the mother, might deprive the complainants of their remedy, if they have any, against the personal representatives or the heirs of Tibbitts, under the covenants of warranty in the deed of 1810. The decree must be so framed, therefore, if the complainants wish it, as to protect all their rights, and at the same time to give to the defendants the full benefit of their title as heirs at law of their mother. This may probably be done by a decree of strict foreclosure as to all rights and interests acquired under the deed of 1810, and declaring the rights of the defendants to the land itself under the pre