Jackson ex dem. Bates v. Lawson

Van Ness, J. delivered the opinion of the court. The first question I shall consider, is, whether the testimony given by Dubois, in the action of ejectment brought by the present defendant against the widow of William Lawson and Brower, and in which the then plaintiff had judgment in 1797, was properly rejected or not. By the will of William Lawson, he devised all his estate to his wife during her widowhood, with remainder to certain of his children and grand children, part of whose estate the now lessor of the plaintiff purchased in 1791. Both the widow of William Lawson, and the lessor of the plaintiff, thus claim under the same will; and I am inclined to think, that there is such a privity of estate between them, that the verdict in that case was, for certain purposes, evidence (though not conclusive) in this. It was evidence, at least, to lay the foundation for admitting the testimony given by Dubois, more especially as the lessor of the plaintiff, in point of fact, had notice of, and defended the former ejectment; was present at the trial, and had an opportunity of cross-examining the witnesses, though I lay no particular stress on these latter facts. The estate devised to the widow during her widowhood, and the remainder over, constitute but one estate carved out of the same inheritance, created and subsisting together, the one in possession, the other in expectancy. An estate in remainder is a present interest, though to be enjoyed in future, and is capable of being aliened, devised, and otherwise disposed of, in the same manner as an estate in possession.' The possession of the widow was, for certain purposes, the possession of the remainder men, and the entry of the present defendant under the recovery in the ejectment, was a prejudice to those in remainder, for, in consequence of it, the estate in remainder has become a right in action only. The lessor of the plaintiff had an interest in defeating the recovery, and his right was so interwoven with that of the widow, that the evidence of [544] Dubois affected the one almost equally with the other. My a£¿enf¡on was not called to this view of the subject at the trial; and the fact, that the present lessor of the plaintiff had purchased part of the estate in remainder before the trial in 1797, was overlooked; and the counsel for the defendant put the admissibility of the testimony offered, on the ground that the lessor of the plaintiff was the agent of the widow, and present at the trial. It was held hy Ch. J. Holt, “ that if several estates in remainder be limited in a deed, and one of the.remainder men obtains a verdict for him, in an action brought against him for the same land, that verdict may be given in evidence for the subsequent, remainder man in an action brought against him for the same land, though he does not claim any estate under the first remainder man, because they all claim under the same deed.'1'1 Pike v. Crouch, (1 Lord Raym. 730.) If the verdict in the former ejectment was admissible on the trial of this suit, by reason that the tenant for life and the remainder men are privies in estate, it follows, that the evidence given in the first suit by a deceased witness, is also admissible. The rule is, that such evidence is proper, not only when the point in issue is the same in a subsequent suit between the same parties, but also for or against persons standing in the relation of privies in blood, privies in estate, or privies in law. On this ground, the defendant is entitled to a new trial; though independently of this, I think a new trial ought to be granted on the other ground taken in the argument, that the verdict is against the weight of evidence. The proof of a conveyance by William Lawson, in his lifetime, to his son Peter, is very clear and satisfactory. New trial granted, with costs to abide the event* END 0F OCTOBER TERM¿.