Jackson ex dem. Lowell v. Parkhurst

By the Court, Sutherland, J. Both parties deriving their title through Janies Sterling, it would seem to be immaterial to the decision of this cause, whether the deeds from Samuel Selden to Jacob Egberts, and from Egberts to Riggs, which were offered in evidence by the defendant, were properly excluded by the judge or not. When those deeds were offered in evidence, the plaintiff had showed nothing but a title by possession for 12 or 13 years in Ezekiel Fox. The defendant then proved that Fox, when in possession, claimed title to the premises under James Sterling, and offered the deeds in question in evidence, as the commencement of a paper title to be regularly carried down to James Sterling, and from him to James Justin Sterling, under whom the defendant is admitted to have entered. The effect of this evidence would have been to compel the plaintiff to shew a paper title from J ames Sterling older than that of James Justin Sterling, or to defeat it in some other way, or he could not have recovered. Thu same effect was produced by the parol testimony which was actually given. [374] A possession prior to that of Fox was shewn in Egberts and Riggs, the grantees in the rejected deeds, and also in James Sterling, and then a deed from the latter to his son in 1821. This imposed upon the plaintiff the necessity of shewing a conveyance from James Sterling to Fox prior to 1821, which he contends was effectually done by the testimony of Matthew Warner. Admitting the deeds therefore to have been improperly excluded, it would not be a ground for granting a new trial, as the error has produced no injury to the defendant. But I am inclined to think the evidence offered was properly rejected. The description of the premises in the deed it will be recollected, was, “ all that certain tract or parcel of land situate in the town of Charlestown, in the county of Ontario and state of New-York, to contain all the land lying on the north side of the state highway, that I purchased of Richard McCardy, supposed to contain about 100 acres.” It is obvious that the deed would have been incapable of location, and for that reason absolutely void, if the words “ that I purchased from Richard McCardy” had been omitted. That was the significant expression which was designed by the parties to designate the premises intended to be conveyed. The defendant, therefore, should have been prepared to produce the deed from McCardy to Selden, or if it could not be produced, to prove its contents so far as was necessary to shew the premises conveyed by it. It became by the reference to it, part of the deed in question; and the evidence which" was offered, was a substitution' of the opinion or conjecture of a witness, in relation to the premises intended to" be conveyed, when the conveyance itself had referred to another instrument, which we are bound to suppose would, if produced, have removed all doubt and ambiguity. • Parol evidence is often not only admissible, but absolutely necessary in order to locate the premises described in a deed. That the boundaries, the courses and distances, or other description given in a deed, are applicable to particular premises, can be shown only by parol. But that was not what the defendant offered to prove. It was, that the witness knew the parties to and the land intended to [375] be conveyed by said deeds; and that they include the premises in question. It was not offered to be shewn that the witness knew that the premises in question were a part of the 100 acres which Selden had purchased of Richard Mc-Cardy, or that he had any knowledge whatever of the land covered by that conveyance. The evidence was properly rejected. 2. The defendant’s counsel was not compelled by the presiding judge to produce the receipt from Sterling to Fox; but the receipt having been shewn to be in his possession, and due notice having been given to him to produce it, he was told that he must produce it or parol evidence of its contents would be given. Upon this intimation he said it was immaterial to him which course was pursued; and the judge directed the receipt to be produced. The counsel must be considered as having voluntarily produced the receipt in preference to having its contents proved by parol. That the plaintiff had a right to prove the contents of the receipt there can be no question. (14 Johns. R. 338, and cases there cited.) 3. The judge undoubtedly erred in permitting James Sterling to be specially sworn to answer such questions as should be put to him in relation to the loss or destruction of the deed to Fox. Sterling was a competent witness for the plaintiff; and when the witness is competent in chief, he must be sworn generally in the cause, though his examination may be confined to a particular or incidental fact; and although the evidence may be addressed to the court instead of the jury; when the loss or destruction of an instrument is proved by a party to the record, he is sworn specially, because he is an incompetent witness, and is admitted only from the necessity of the case, and shall be a witness no farther than such necessity demands. But, although the judge erred in this respect, I am induced to think a new trial" ought not on that account to be granted; because the witness was immediately afterwards called and sworn in chief on the behalf of the defendant. The defendant therefore had the benefit of his testimony in as ample a manner as though he had been the witness of the plaintiff. The only injury he sustained was in [376] being compelled to procure a release to the witness from his gon James Justin Sterling, in order to render him competent, and in losing the privilege of impeaching him. I think, under all the circumstances of the case, we are authorized in gayj[ng.^a^ the defendant was not prejudiced by the erroneous decision of the judge. 4. The remaining question, and that on which in my opinion the decision of the cause depends, is, whether the execution, and delivery of the deed from James Sterling to Fox was duly proved. It will be recollected that this deed bore date in 1813, and the deed from the same grantor to his son James Justin Sterling, under whom the defendant claims, was not given until 1821. If the first deed was valid and effectual, the lessor of'the plaintiff who claims under Fox must recover. The testimony of Matthew Warner, taken in connection with the receipt from Sterling to Fox of the 28th January, 1819, clearly establishes the execution and delivery of the deed. Warner says that after the deed had been duly executed and acknowledged by the grantors before the witness, he told Fox his deed was complete, and laid it on the table before him-, and Fox paid him his fees. If, instead of laying the deed on the table, he had put it in the hand of Fox, there could be no question that it would have been a good delivery ; or if he or any other witness had subsequently seen it in Fox’s possession. Now Sterling’s receipt shews that the deed was in the possession of Fox in ■1819, when it was deposited with Sterling as security for his demand against Fox. The evidence of the delivery of the deed appears to me to be clear and irresistible. If the deed was actually delivered, the legal estate in the premises vested in the grantee, and the subsequent pledge or ■ deposit of the deed with the grantor by way of security, would only give him an equitable lien on the premises in the nature of a mortgage. But such lien or equitable mortgage cannot be set up at law as a legal estate. (1 Johns. Cas. 114. 12 Johns. R. 418.) It would also appear, from the testimony of Sterling himself, that the demands for the security of which this deed was deposited, had been satisfied by way of set off [377] against a judgment recovered by Fox against him. If so, there was not even an equitable outstanding title in Sterling. Some of the observations of the judge in his change to the jury, I apprehend, were not strictly correct; but they were not 'calculated to mislead or affect the decision of the jury. I am, on the whole case, of opinion that the motion for new trial ought to be denied.