Dwight v. Brashear

Voorhies, J. This is an injunction sued out in the case which was decided between the parties litigant by this court in September, 1855. See 10th An., 645. [861] The appeal in that case was taken on the 6th of February, 1863. During its pendency, it appears the defendant offered to restore to the plaintiff, Brashear, the property in litigation, acquiescing in the judgment so far as it passed upon ■the title, but reserving his right of appeal on the other branch of the case, namely: the rents or fruits of the property. Brashear declined to accept the offer, alleging as a reason, that he had agreed to convey the property to his attorney, William O. Dwight, on the final decision. “A mixed action, is one which, in its nature, partakes both of the real and ■ of the personal action, such as a claim for the ownership of real property, and also for the fruits it has produced, or their value.” O. P., 7. The question as to the title or the fruits may be decided in a seperate action. See Winter v. Zacharie, 6 R. 466. Wo are unable to perceive any good reason why the defendant Dwight could not abandon his appeal from that portion of the judgment which passed upon the title to the property. Article 567 of the Code of Practice declares: “ The party against whom judgment has been rendered, cannot appeal, if such judgment have been confessed by him, or if he have acquiesced in the same, by executing it nolunta/rihy.” The tender of the property to Brashear was in writing. It was, therefore, competent for him to avail himself of it, under this provision, as a ground to dismiss the appeal on that branch of the case. The property in question appears to have been in William O. Dwight’s possession until his death, when it went into the possession of the administrator of his estate, who continued to hold it from the date of the tender until the final decision of the case. E. P. Dwight, the administrator, testifies “ that William O. Dwight in his lifetime occupied rooms in the building which was in controversy between Walter Brashear and 3. O. Dwight, and for the rent of which property the execution enjoined was issued. There existed a written agreement between Walter Brasheao' and 3. O. Dwight, by which the former was to transfer the property to the latter, after the title to the same was decided. On the 23d of December, 1854, he requested L. P. Curtis to take charge of the property and rent it for him. Had a conversation with Ourtis a short time after the above date, in which Ourtis stated that he had rented the property to Ibert,” &c. Gross-examined says, that “he was not directly authorized by Walter Brashear to take possession of that property and rent it; but considers that under the agreement he was authorized,” &c. The testimony of this witness forms the subject of a bill of exceptions taken by the counsel of the defendant and appellant on the trial below. His testimony was objected to “ on the ground, that the defendant should not be prejudiced by the acts of other parties, who, without his authority, assumed to control his property, and that all such testimony went to prove res inter alios acta.” We do not think the Judge erred in overruling the objection, which could only go to the effect, and not to the admissibility of the testimony. Had the witness no authority to control the property, it is perfectly clear that his acts could in no manner affect or prejudice the appellant's right. But we think the evidence discloses that he had such authority under the written agreement of the appellant. That agreement, it is true, has not been produced, but we are bound to presume from the testimony of the witness that such authority existed as he understood it under the agreement. Had it not been so, the appellant should have shown it by the production of the instrument itself, which [862] is not pretended to havejjeen destroyed, although the contraot between the parties was voluntarily revoked by them in 1856. That such authority existed, we think, is fully oonfirmed by the admission of the appellant himself. The appellee having thus parted with the possession of the property, it appears to us to flow as a matter of natural consequence, that he cannot be hold liable eithor in equity or law, for its fruits, The judgment affirmed by this court decrees the appellee to pay the appellant the fruits at the rate of $418 per annum until the restoration of the property, The fruits which have accrued since the tender, constitute the only claim for which the appellee is sought to be made liable; and, as wo have seen, without any legal foundation. We-are, therefore, of opinion there is no orror in the judgment of the court below, which is affirmod, with costs,