Lawrence v. Fulton

Norton, J. delivered the opinion of the Court Field, C. J. and Cope, J. concurring. This is an action of ejectment. The plaintiff claims title under Henry Fairbanks, and on the trial offered to give parol evidence of the contents of a deed from H. A. Hatch to Fairbanks. This offer was rejected by the Court, and the plaintiff excepted. No ground of objection to this testimony is specified in the statement, but from [689] the character of the testimony given in relation to the offer, it is apparent that the reason of its being rejected was that no sufficient proof was made of the loss of the deed. E. A. Lawrence, a witness for the plaintiff, testified that he once had the deed in his possession, and at first thought Fairbanks had it now, but that he had received a letter from Fairbanks saying that he, the witness, had not returned it to him, and now the witness was satisfied that it was not in Fairbanks’ possession. The witness then testified as to his search among his own papers for the deed without effect, and his belief that it was destroyed. An affidavit of the plaintiff also showed that he had never had possession of the deed. The obvious defect of this proof is that it rests upon hearsay—that is, upon a letter from Fairbanks, and not upon his testimony. Fairbanks, the grantee, is the person in whose possession the deed would most appropriately be, and in his possession the witness Lawrence thought it was, and has only changed this opinion because he has received the unsworn statement of Fairbanks to the contrary. This proof of the loss of the deed was insufficient to authorize secondary proof of its contents. The deposition of Fairbanks was produced on the trial, and his answer to the fourth interrogatory was ruled out by the Court. One ground upon which the plaintiff asked a new trial was, that he was surprised by this ruling. In this answer the witness says:— “ Hatch made a deed to me of said premises in the early part of 1854, and I have the deed now in my possession.” The only benefit that the plaintiff could have derived from this testimony was as proof of the contents of the deed; but counsel could not have expected to read one part of this sentence to prove the contents of a lost deed, when the other part proved the deed to be then in the possession of the witness. This proof being ruled out could not be claimed by the defendant, or considered by the Court, to show that in fact the deed was not lost, but its rejection could not have been a surprise upon the plaintiff; at any rate, not such a surprise as the Court can recognize as a ground for setting aside the verdict. The objection to this proof was not waived by not being raised when the deposition was taken. By section four hundred and thirty of the Civil Practice Act, depositions are subject to all legal exceptions at [690] the trial, but the single objection to the form of an interrogatory in case the parties attend the examination. What is claimed as newly discovered evidence, to wit: a notice published by Hatch in a newspaper, to the effect that Fairbanks claimed the premises in question—was merely cumulative, if it could be at all admitted as evidence. The Court charged the jury that to enable the plaintiff to recover, they must be satisfied that the person under whom he claimed “ had had an actual, bona fide occupation, and had subjected the land to his will and control for some space of time—that mere assertion of title, coupled with casual acts of ownership, is not sufficient.” This charge is objected to on the ground that the word “ occupation ” is more extensive than the word “ possession,” and conveyed to the jury the idea that the party must himself have lived upon the premises. The word “'occupation ” may be so used in connection with other expressions, or under peculiar facts of a case, as to signify a residence. But ordinarily, the expressions “ occupation,” "possessio pedis,” “ subjection to the will and control,” are employed as synonymous terms, and as signifying actual possession. (Plume v. Seward, 4 Cal. 94 ; Jackson v. Schoonmaker, 2 J. R. 234 ; Bailey v. Irby, 2 Nott & McCord, 343 ; Jackson v. Wood-ruff, 1 Cowen, 285 ; Jackson v. Halstead, 5 Id. 219.) In this sense, as is apparent from the other charges given in connection with it, the expression was used in this charge, and there is nothing to indicate that the jury understood it in any other sense. All the other charges were as favorable to the plaintiff as the law would allow, and as favorable as he could, under the proofs, have desired. After the charge was given by the Court, the plaintiff presented a number of instructions. They generally relate to the character of the use or occupancy of the premises which is sufficient to constitute a possessory title, and with special reference to the evidence adduced in this case. They were refused or given with qualifications, according as they varied substantially from the charge already given upon that subject. We discover no error in these rulings, and it would be an unprofitable labor to discuss each one separately. One instruction requested was as follows: “ That lapse of time does not constitute an abandonment, but that it consists in a voluntary [691] surrender and giving up of the thing by the owner because he no longer desires to possess it, or thereafter to assert any right or dominion over it.” This instruction was given with the qualification that lapse of time constitutes the material element in the question of abandonment. It would be more exact to say that lapse of time constitutes a material element to be considered in deciding the question of abandonment. But the instruction given and the qualification are in connection the same in effect. Judgment affirmed.