Mullins v. . Chickering

Finch, J. The defendants were bailees of the plaintiff. She placed the piano in their possession, to keep for her and return upon her demand. They were not at liberty to dispute her title except in one emergency and at one peril. The executors of the husband claimed title to the property as having belonged to the testator, and demanded it of the defendants. They chose to submit to the demand and delivered the piano to the executors. By so doing they made themselves parties to the controversy, and when called on to return the property to the plaintiff their refusal exposed them to an action for ■conversion, which has gone against them. They had, however, the right to set up as a defense thejus tertii, and defend, if they could, upon the title of the testator which had passed to the executors, since before this action was tried they had submitted to that title, and delivered the property to those who -claimed to be owners ( W. Trans. Coy. Barber, 56 FT. T. 544), .and had been permitted to raise that question by a supplemental answer. They had taken upon themselves the risk of that title, but could defend upon it and justify under it. 'They chose to hold under the testator and to derive their title .and interest and all their right to the property or its possession .from and under the deceased, and had a right to defend their surrender upon that title. They came, consequently, within the description of section 829 of the Code of Civil Procedure as “ a person deriving his title or interest from, through or under a deceased person '* * * by assignment or otherwise.” Against them, therefore, the plaintiff could not testify in her own behalf to any personal transactions between herself and her husband. She did so testify. The proof showed that he bought and paid for the piano with his own money. That established title in him. She met the emergency by swearing that he, the owner, *515 gave it to her. That proof was objected to on two grounds — as in violation of section 829, and as a conclusion of law. The first objection, at least, was good. A critical and close construction of the record might justify a ruling that the objection came too late, and that a motion to strike out the evidence was needed. But the respondent makes no such point. Her counsel assume that the objection was fairly and properly taken, but resist it as unsound. We ought not, therefore, to indulge in a severity of criticism which the silence of the respondent indicates would not be justified by what actually occurred, and the record shows notice of an objection given in advance, and repeated in detail when the character of the evidence became apparent. Bor this error the judgment should be reversed and a new trial granted, costs to abide event.