Berry v. Lessee of Osborne

By the Court. Benxinc J., delivering tho opinion. [1.] Ought tho defendant to have boon allowed to prove that the lot “ was known in the neighborhood as John Hardy’s land?” In offering to prove this, the defendant’s object was not to identify the lot, but to prove ownership of it in Hardy. Such being the object, the proof offered was illegal, as amounting to hearsay. Hearsay “denotes that kind of evidence which does not derive its value, solely, from the credit to .be given to the witness himself, but rests also, in part, on the- -ye [196] racity and competency of some other person”. (1 Greenl. Ev. §99.) The defendant, therefore, ought not to have been allowed to introduce this proof. In not allowing him to do it, the Court, consequently, did right. [2.] Was the charge of the Court, in any particular, erroneous ? It is insisted for the plaintiff in error, that it was, and in this particular, viz: “ If Hardy’s title and possession were fraudulent, the possession so, fraudulently, held by him, could not be tacked to the years in which it was, bona fide, held by others, to make up the time of seven years in them, adverse to the true owner”. And it is insisted that the charge was erroneous in this particular, because there was nothing in evidence to justify any charge at all, upon the point to which this charge •is applicable, because there was no evidence going to show that Hardy’s possession was fraudulent”. Is the plaintiff in error right, in respect to this matter of Tact? Was there really no such evidence? Let us see. Hardy claimed under a deed from one “ Dionyssius J. C. Wright”, bearing date in 1840. In the signature to this deed, the middle initial letters, whatever they were, had boen erased, and the letters “ J. C.” written just above the place of erasure, with a caret underneath. This is a thing which would have been likely to occur, if the person who made the signature was not Dionyssius J. C. Wright, but was somebody personating him. It is not such.a thing as would have been likely to happen, if the person who made the signature was Wright himself. It is, in short, a thing from which the Jury might infer that the deed was made, not by Wright himself, but by some one personating him, and with a view to defraud him. It is also a thing which the Jury might infer to have been done, at the time when the deed was executed; and therefore, done in the presence, and with the knowledge of Hardy. There are other facts in the case, which the Jury might consider as showing that Hardy knew something about this deed [197] to be wrong. He bought the land in 1840, the date of the •deed, 'for $500, according to the face of the deed, and kept it until 1849, when ho sold it for $200. He took to himself a ■deed, with warranty—he made to his own vendee but a quitclaim deed. Building a log cabin, ho let it go to decay. He deadened ten nr twelve acres for clearing, and then cleared only a quarter of an acre. He suffered the place, frequently, to be vacant—a harbor for any body without a home—once for a woman of ill-fame, whom he had let stay until the neighbors, wearied out with the nuisance, pulled down the cabin to abate it. It is not until after more than seven years have elapsed, that the place, in the hands of his alienee, Paul, begins to look like a place that has an owner who believes in his ownership. After the lapse of that time, the improvements begin to be real and substantial. These facts were proved. . These things being so, the plaintiff in error is not right, in respect to this matter of fact. From these things, the Jury might have inferred that Hardy’s possession was fraudulent. It follows, that the charge of the Court complained of, was •called for by the facts of the case. And if called for, it is not insisted that it was wrong. Not was it wrong, in the judgment of this Court. The verdict does not appear, to this Court, to have been contrary to law or evidence. The refusal of the Court to grant a new trial is, therefore, on the whole, affirmed.