Postens v. Postens

The opinion of the Court was delivered by Sergeant, J. The first exception is to the permission given by the court to the plaintiff to ask what was the character and standing of three of the persons who assisted in the settlement of the accounts between Jacob Postens and his son James? The objection is, that their characters not having been attacked by the defendant, and the issue not involving any imputation of fraud against them, the evidence was irrelevant and improper. It would seem that these persons were not appointed as referees, to arbitrate the accounts, but were called in rather for their friendly advice and assistance, in the character of neighbours and friends; so that it is not exactly like the case of asking the character of a party to the cause when not in issue, or that of an arbitrator, before it is attacked, which is not permitted, lest it should lead to a prolix inquiry, consuming time needlessly. It does appear, however, that the previous cross-examination by the defendant rather tended to question the mode in which these persons con- • ducted themselves, and the circumstances under which they acted, as well as the fitness of the old man to transact such a business, and involved indirectly a reflection on those who sanctioned the settlement. But it is sufficient that in looking to the answer of the witness it amounts to no more than the law of itself would imply without proof—namely, that their characters stood fair. This being the case, it could have done no prejudice to the defendant, even admitting that it would not otherwise have been strictly proper. 2. The plaintiff could not be permitted to give in evidence the declarations of Jacob Postens subsequent to his deed to William, for the purpose of impugning the title; the rule being settled, that the declarations of the grantor after parting with the title, are not evidence to affect or impeach it in the hands of his grantee. The ground, however, on which the evidence seems to have been admitted, was, that these declarations occurred in a conversation of [135] which the defendant had already given a portion in evidence, and that the plaintiff had a right to call for the rest of that conversation. And on turning to the latter part of the evidence given by the defendant in the previous deposition of the same witness, such seems to have been the case, for he says, “ I was down at the old man’s, William Posten’s, after the deed was given to transfer the land in question. The old man then complained that William did not come and live on it. He (the old man) said, that William had a deed for it.” The evidence in this point of view was admissible. 3. The evidence of the value in the years 1830 and 1831, of a tract of land (not the premises in dispute) which had belonged to Jacob Postens, was objected to, because it was after the- time when the deed to William was made. As a mode of ascertaining the value of the grantor’s estate at or about the year 1828, it was admissible; particularly as the witness had previously stated he should not think there was much change in the value from 1828 to 1830; and the defendant cross-examined the witness, and might examine others to show, that its value was changed in the mean time. 4. The 4th and 5th bills of exceptions are to the evidence of the declarations of Jacob Postens, as to James Postens’s management of the farm, and that he had hired James Postens. These declarations appear to have been made during the time when the relationship between the father and son existed, whether in the capacity of landlord and tenant, or of master and • servant, and were part of the res gestee. The relation of .the-parties being of doubtful interpretation, the character in which they really stood might be proved by the declarations of either made at the time, as to the relations existing between them. The 6th bill of exceptions is, to the evidence of Stokes, which it is said has no bearing on the case. This may be so, and it is sometimes difficult for a court of error to perceive the application of particular evidence; and, therefore, it will not reverse for a matter of this kind, whether received or rejected, when possibly no prejudice is done to the cause by either course on the part of the court below. 7th. What James Postens said to the witness when he called on him to attend the settlement is objected to. The defendant had, however, proved by this and other witnesses, that James Postens had called on him to attend, and what he said was a part of the transaction, calculated to rebut the allegation that James of his own accord procured the attendance of these persons; and it was properly admitted. I perceive nothing to warrant the exceptions to the charge of the court, that the validity of the two first judgments, (for $474.57, and $527.37), appeared to be clearly established. They remained in full force, not reversed or set aside, and could not be questioned [136] in this collateral proceeding, unless collusion or covin were shown between the parties to them, which is not pretended; and as to the indebtedness under them, the latter judgment was entered within 20 years from the date of the bill obligatory; and though the former was after a lapse of more than 20 years, yet the presumption of payment was rebutted by the endorsement of Jacob Postens, promising to pay on the 1st of June 1830. Such promise, it is true, would not revive a sealed instrument as such, which had been barred by a statutory provision, (2 Rawle 351); but it would be effectual as a circumstance to rebut the presumption of payment arising from the mere lapse of time, and would leave the bond in its original vigour. Judgment affirmed.