Jackson ex dem. Youngs v. Vredenburgh

Tompkins, J. now delivered the opinion of the court» The first point re†lied upon in support of the motion for a new trial is, that Joseph Corre, the tenant in possession of the premises in dispute, was’ improperly admitted as a witness. He was offered on the part of the plaintiff for the purpose of proving that when the witness accepted a deed of th'e premises from Christopher Youngs, he was in possession as tenant to the defendant. To give validity to this objection, it ought to appear, that the interest of the witness was against the defendant. For the reason of the rule of evidence which deprives the landlord of the benefit of the tenant’s testimony is, that the tenant cannot be permitted by his evidence to support his own possession. (Cowper 622.* 1 Strange 632.† Woodfall 492.‡) That reason does not apply in this case, for the interest of the witness was against the party calling him. A person interested in a cause, is an objectionable witness only when he comes to prove a fact consistent with his interest; but if he be called to give evidence contrary to that interest, he is the best possible witness, and no objection can be made tq him by a party* >:q the cause» Rea. Ev. 112, [163] The case of Brinckerhoff ads. Jackson ex dem. Jones and others, (April term, 1802) in. this court, has disposed of the second point. It was there determined, that the deed of a person out of possession being void, did not preclude the grantor from maintaining an action of ejectment to recover possession of the same premises. Another ground for a new trial is, that certain testimony offered by the defendant, ^ad which ought to have been admitted, was overruled by the judge. This evidence was relative to the declarations of Sarah Punderson. This testimony, though not immediately preceded by a declaration of the purpose for which it was intended, must be deemed from the whole case, to have been oiLred to prove the existence of a will, or to lay the foundation for the jury to presume a will. Apart from the declarations of Mrs. Punderson, there appears no evidence upon which to found such a presumption. Those declarations are not, in my opinion, admissible for that purpose, because Mrs. Punderson, if Ev’ng, could not have been a witness to prove that fact, as she had given a warranty deed of the premises,- and consequently was interested to support a title deduced from her. It will not therefore be necessary now to determine whether under any, and what circumstances, the declarations of a competent witness in articulo mortis, can be introduced as legal evidence in a civil case. But for another purpose, the declarations of Mrs. Punderson were clearly evidence, namely, to show in what character, or with what intent she entered, and held possession of the premises in dispute. The plaintiffs contended, and the judge, in his charge to the jury, adopted the opinion, that the mother ought to be presumed to have entered and held as guardian in socage to her son. Such ought undoubtedly to be the inference where the entry end perception of rents are unaccompanied with acts or deckrations inconsistent with that character. In' the case of Newman v. Newman, 3 Wil. 516, it is repeatedly mentioned, that the entry of the mother and the perception of the rents [164] was not atten<led with any declarations or acts to evince with w^at intention, or by what right or authority, or in what character she took possession. It was, therefore, perfectly reasonable in that case to presume the entry as guardian in socage, which was the only character in which the mother could rightfully enter, rather than presume a wrong, or disseisin by her. The facts in the present case, however, are widely different. Here Mrs. Punderson leased the whole as her own, and without describing herself as guardian, received and applied the whole rents, offered to sell and did sell as her oxvn, and, uniformly, during her life declared the premises xvere her own, and traced her title to a will of her husband, which she alleged to have existed. These facts distinguish the case from that of Newman v. Newman, If she held adversely to her son, an important question upon the statute of limitations would arise. But if she held as guardian in socage, the statute does not bar the plaintiff, for the proviso with respect to the limitation to ten years, applies only to cases where the infant does not die seised. Whether the xvidow in this case held adversely, or as guardian in socage, is a question of fact for the decision of a jury ; and for the more satisfactory determination of that question upon the evidence which xvas excluded upon the former trial, in addition to that upon xvhich the verdict already given was founded, I think a new trial ought to be awarded. But as the judge was correct in overruling the testimony as improper to establish the existence of a will, and as it was not contended by the defendant’s counsel on the trial, that it ought to be admitted for the purpose for xvhich I have considered it as admissible, the rule is granted upon payment of costs by the defendant. . New trial granted? ■ Footnotes [*] Doe v. Williams. [†] Bourne v. Turner. [‡] 2d Edition.