Spaulding v. Albin

The opinion of the court was delivered by MUNSON, J. The report of the master entitles the complainants to a decree, unless his findings are vitiated by errors in [152] the reception and consideration of evidence. The defendant claims that the master’s conclusions result from a consideration of evidence improperly received, and from a failure to consider evidence which was properly before him. The master reports that the indorsements upon the notes described in the bill were not in the handwriting of William Albin, Jr., and that there was “no proof of any kind” before him as to these indorsements. The answer alleges that William Albin, Jr. made payments upon the note in controversy at various times, and acknowledged and treated the note 'as his own. From these statements of the report and answer the defendant draws the conclusion that the master did not use the answer as evidence. But in another part of the report the master says that the defendant claimed that William Albin, Jr. made payments on this note from time to time, arid produced evidence in support of such claim. It is evident from this that in saying there was no evidence as to these indorsements, the master referred merely to the making of the indorsements, and not to the question of a recognition by payment. So the clause relied upon does not indicate a failure to treat the answer as evidence. The oratrix was received as a witness upon all the matters in controversy; but the master reports that he only made use of her testimony to get a history of the case, and distinctly states that he did not make use of confidential communications between the oratrix and her deceased husband. It thus appears that no consideration was given to such part of her testimony as was incompetent. In trials where the admissibility of the testimony must be passed upon by the same tribunal which is to determine the fact, the reception of improper evidence is not treated as error when the trier satisfies the court that no use was made of it. Foster's Admr. v. Burton, 62 Vt. 239. The fact that at a certain interview between the husband and wife this note was not mentioned is found from the testimony of the oratrix, but this does not come within the rule of exclusion. [153] The bill is brought to set aside a certain levy of execution, and to establish a homestead right in the premises levied upon. The claim is that in pursuance of an agreement entered into for ■the purpose of defrauding the oratrix of her homestead, a suit was brought by the defendant against the oratrix’s husband, and a judgment suffered by him, upon a note for which he was not liable. In connection with other evidence tending to establish the common design, the master received evidence of the sayings of the husband in regard to the matters claimed to be fraudulent. If these statements were made while the fraudulent agreement was being carried out, and in furtherance of it, they were admissible against the defendant. As it does not appear but that they were so made, no error can be claimed in this respect. It appears that the defendant permitted the husband to continue in the occupancy of the premises from the time of the levy until his death, without payment of rent or other recognition of her right. The oratrix was permitted to show that while so in possession her huslmid repeatedly stated that he was as much the owner of the farm as he was before the levy. This is claimed to have been error, in view of the rule stated in Brackett v. Wait, 6 Vt. 411, and Edgell v. Bennett, 7 Vt. 534, that the declarations of a grantor made after the delivery of his deed are not to be received to prove it fraudulent. But a modification of this rule has been recognized in regard to declarations made in connection with a possession of the character shown here. In Pomeroy v. Bailey, 43 N. H. 118, the plaintiff claimed under an extent of execution against one Hannah Dow; and the defendant contended that the plaintiff was not a creditor of Dow, but that the claim upon which he had obtained judgment was fictitious, and gotten up by collusion between the parties to defeat the conveyance under which the defendant claimed. The plaintiff had permitted the debtor to remain in possession of the land levied upon, and evidence was admitted of a statement made by the debtor while so in possession, that she was to have the use of the property [154] during lier life. The court held tlie evidence proper, as bearing upon the question of the validity of the transaction. In Redfield v. Buck, 35 Conn. 328, the plaintiff claimed title under a levy of execution, and the defendant under a prior deed from the execution debtor. After the delivery of this deed the grantor occupied and managed the property the same as before, and the plaintiff was allowed to show that during such subsequent occupancy he had offered to sell the property as his own. It was held that this evidence was properly received, as characterizing the possession and management of the property, and tending to show that the grantor remained the real owner notwithstanding his deed. The rule which must govern here is apparent from the above cases. Declarations made under these circumstances, although in disparagement of the title given by the declarant, are received to characterize his continued possession. And we see no reason why one who, upon taking the title to real estate, leaves the former owner in the complete control and enjoyment which ordinarily accompany ownership, should not be required to meet in evidence, when the validity of the transfer is questioned, the declarations made in connection with, and in characterization of, the possession thus permitted. Decree affirmed and ccmse remanded. Boyce, Ok J., did not sit because of illness.