Warner v. Bull

Dewey, J. 1. The request to the presiding judge to present to the jury the case of Joseph Bull, one of the tenants, before they should be charged with the case of Henry D Bull, with a view of using the testimony of Joseph Bull, after a [4] verdict in his favor, upon the further trial of Henry D. Bull, was, in the opinion of the whole court, properly refused. The right of one of several defendants to a separate presentation to the jury, of the issue as to him, is, from the very nature of the case, attended with much embarrassment and delay in the conducting of the case, and renders necessary, virtually, two trials in the same case. The original reason of the rule, sanctioning this course of proceeding, doubtless was, to prevent a fraudulent or improper joinder of persons as defendants, with a view to their exclusion as witnesses for the other party. It is therefore a salutary power to be vested in the presiding judge, and one which, from the very nature of the case, must, to some considerable extent, be a discretionary power, or at least the exercise of it must depend upon his view of the state of the evidence. If there be any evidence against such defendant, there is no legal right to insist upon a separate trial as to him, with a view of using him as a witness for the other defendant, although the judge may strongly incline to the opinion that the weight of evidence is in his favor. In the present case, there was evidence bearing upon the tenant Joseph Bull, and clearly establishing his connexion with the subject of this controversy; an actual occupation and possession of the premises, at an earlier period than that of the plaintiffs’ deed, and under circumstances which might justify uniting him as a defendant, and quite sufficient to justify the presiding judge in refusing the application for a verdict to be taken in his case, prior to passing upon the case of Henry D. Bull. 1 Greenl. on Ev. § 358. [See 2 Car. & Kirw. 429, 710.] 2. The remaining question is as to the effect of the deed of Thomas Ashley to the demandants, under the circumstances stated in the report. A conveyance by a party out of possession, the premises being in the adverse possession of another person, is inoperative to pass the title. But the difficulty in the case supposed is obviated where the grantor has a right of entry, and, having this right, actually enters upon the land, and there delivers the deed to the grantee. As the [5] entry restores the possession to the grantor for the time being, the technical difficulty of a want of capacity to convey, in one who is disseized, no longer exists. This principle has been applied by this court in two cases, (Knox v. Jenks, 7 Mass. 488, and Oakes v. Marcy, 10 Pick. 195,) under circumstances that would warrant the application of thé same principle here. Nor can the objection be sustained, as sufficient to defeat the present action, that the demandants knew, at the time of the purchase, that the title was in controversy. The mere fact, that some third person questions the title of the grantor, cannot prevent the real owner from conveying his real estate to a bona fide purchaser, if the grantor can make a peaceable entry upon the land, and there deliver his deed. The facts in the present case do not bring it within the operation of the principle of champerty or maintenance, so as to defeat the demandants’ title on that ground. Judgment on the verdict for the demandants.