Clark v. Johnson

5 Day 373

Opinion

IjíGERSor.L, J.

delivered the opinion of the Court. So far as respects the question, whether it was proper to admit proof, that Oliva' Tousey, after he had made the conveyances claimed to he fraudulent, remained in possession of the land conveyed, and made conveyances of the same, in the manner stated in the motion, I am of opinion, that such proof was properly admitted. This point has been so often decided, and is, as 1 apprehend, so perfectly clear, that I shall spend no time to prove it.

Equally clear is it, also, as it strikes me, that the admission of Nathan Ferris to testify to the facts, to which it is stated in the motion, he did testify, was improper. For, however proper it might have been, in order to establish the conveyances under consideration, to be fraudulent, to admit proof that Tousey made other fraudulent conveyances, at the time, or about the time, when the former were made ; yet, certainly, a fraudulent conveyance, made on the 21st day of September, is no evidenee that one made on the 6th day of the same month, was so.

The labouring point, however, in this case, is, whether the rejection of Oliver Tousey, as a witness, was proper, or otherwise l On this point, there may be a diversity of sentiment. It is my opinion, after full deliberation, that he was improperly rejected ; and that, on this ground, as well as on the ground of admitting Nathan Ferris-to testify, there ought to be a new trial. That Touscy was not so far interested in the event uf the suit, as that the verdict could ever be given in evidence against him, is very clear. In any action, brought against him, on the covenants of seisin, or warranty, in his deed, he may contend, that he had a good title to the prem ises, though it may have been claimed in this case, that he had not such title. But it 1ms been urged, that, in cases of this kind, the warrantor can never he admitted as a witness, without a release of all demands on account of warranty ; and that even if such release be executed, it was determined in the case of Ahby and Goodrich, reported iu the third volume of Day's Rep. page 433. that he could not be admitted to testify. A release -was, in fact, executed to the witness, in the present case ; and by two decisions in the state of Nem-York ; one reported in the second volume o( Johnson's Rep. page 394., and the other in the sixth volume of the same reports, that the witness, by means of the release, became competent to testify. The same doctrine is held in the case of Middlemore v. Goodale, Cro. Car. 503. To be sure, in the latter case, it was determined, that a release of the covenant should not bar the suit, because it was given by the covenantee to the covenantor, after a suit had been brought by the assignee of the covenantee, for a breach of covenant subsequent to the assignment. The court, however, said, that though it was a covenant, that run with the land, yet if the release had been executed previously to the commencement of the action, it would have been a good bar. This opinion is decisive, that after the release was executed to Tmcscy, lie was a competent witness. For, if a release of the covenantee, after an assignment made by him, will be operative, a fortiori, one executed by him while the land is in his hands, shall be alike operative.

I think, without taking into consideration any authorities on the subject, I can evince, that the general principles of law, as to the admissibility of witnesses, would warrant the admissibility of Tousey, in the case under consideration.

I think, I can also evince, that a determination in the present case, that he was a good witness, will steer clear of any decision made in the case of Abhy and Goodrich. I shall not discuss the question, whether this covenant be a covenant that runs with the land; but shall take it for granted, that it is so. It is an agreed principle, that if an interested witness, by taking a release, can become disinterested. he may be sworn. It must be agreed, also, that by taking the release, in the present ease, Tousey was exonerated from every claim, which the plaintiff might have had against him, grounded on a breach, of covenant. It follows, thou, that if matters could always remain in sialu quo, that is, if there never should be any other claimant to the land, in virtue ol' Tousnfs deed, but the plaintiff, that he (Tousey) would become totally exonerated from any demand for damages, on account of ids covenants. Equally clear is it, also, as I apprehend, that the plaintiff’s heirs, in case of his death, would be, as to such claim, in exactly the same predicament, with him. Hut it ⅛ said, that the plaintiff may convey to a third person, and that the covenant running with the land, will vest in such third person, and that be, as assignee, may take advantage of the covenant, notwithstanding the release. Suppose I grant this ; yet, is Tousey an interested witness after receiving the release ? Will it be a matter of course, that there must be a recovery against him, in case of a failure of title ! No ; according to existing circumstances, it will, of course, be otherwise. There could, in such case, be no recovery against him. The question always ⅛, whether a witness offered is interested at the time of the offer 1 Not, whether it is possible, in the nature of things, or probable, that in a course of events, he may be so. An heir apparent to an estate, may be a witness as to the title to that very estate : And yet, there is the greatest probability, that in process of time, he may be deeply interested in establishing the title. Thus, it appears, as I think, that Tousey, after receiving the release, was not, at that time, interested in the event of the suit, nor even in the question.

Now, it is to be considered, whether, by advising a new trial, we can steer clear of the decision in the case of Abby and Goodrich ? Here it may be premised, that, if that decision was not agreeable to the general principles of law, on this subject, it ought not to be considered as binding. But, I trust, as I have heretofore observed, that a new trial may he advised, and still the decision in Abby and Goodrich, be preserved entire. It will be noticed, that in deciding that ease, the court went upon tile ground, (hat Ebnii r and Daria White, who were offered as witnesses, were interested in the event of the suit, before the release was executed; and that this release made no difference as to their interest. In truth, it made no difference as to interest. The question was as to the eastern boundary line of thirteen acres of land, which they had sold off from a larger tract owned by them. The thirteen acres were bounded, east, on Jeremiah Goodrich., not specifying any metes and bounds : west, by their own land, (the part not sold,) and north and south, by certain fixed boundaries. Of course, flu: farther oast they could establish the boundary line, the more land west of the thirteen acres they would hold. Bid in case it had been determined, on the trial of that cause, as in fact it \\⅞ determined, that the boundary line between Abby and Goodrich, was not as far east, as Abby and the witnesses supposed it to be ; yet, the witnesses could not be liable on their covenants, as long as they owned sufficient land west to make up the thirteen acres. For Abby never could put his foot on any spot of land, and sa5r, “ you have warranted this land to me, and it has been taken from me.” The answer to such a claim, would be, “ we have warranted to you thirteen acre? on the east end of our farm, and, as long as the farm contains thirteen acres, you will have your land.” Thus, it appears, that the release did not alter the situation of the witnesses, as to interest, one tittle. There was no covenant broken ■ and, therefore, on the determination of the cause against Abby, (if the release had not been given,) no action could have been sustained in Ms favour. His only remedy would he, to go farther westward, until he could measure off thirteen acres. And after the release, he is in precisely the same situation. He then might measure off his thirteen acres ; for that number was conveyed to him ; nor is he debarred from it, by executing the release.

In short, as no covenant had been broken, nor eould be broken, let the decision be as it might, there was nothing for the release to operate upon. It follows, then, conclusively, as has been before observed, that on the ground, that Eben c:;cr and David While were rejected as witnesses, before the execution of tiie release, on the same ground must they have been rejected afterwards.

But, by the execution of the release, in the case under consideration, Tousiy, the wilmss, became divested of an interest, which he had before such execution. He had warranted to the plaintiff, the identical lands in question ; and if the title failed to any par!, be was liable. By receiving the release, he was not holden by that warranty, and became thereby totally disinterested.

Such being the reasons for a new trial, it remains to be considered, whether Tousey s testimony, on the ground of making him a mortgagor of the premises, ought to have been injected ? It will he observed, that in point of fact, it was a matter of total indifference to him, whether the deed should be adjudged to be fraudulent, or not : For it is stated, that the value of the land, was not sufficient to indemnify the plaintiff for the money he had to pay for Tousey. Of course, it could not be his interest to redeem. But suppose, that in point of law, he had an interest : It was but an interest in the question, and that very small. A judgment in the cause could not affect his interest, one way or the other. His title to redeem, (if he had one,) would still remain good. If I rightly recollect, this point was not very strenuously urged by the counsel opposed to a new trial. At least, it was treated as one of the smaller points in the case.

The great point was, whether the release restored to Tousey the capacity to testify. On the ground, that it did so restore to him such capacity, and that he ought to have testified, as I have before observed, I would advise a new trial.

Baldwin-,,).

] advise that a new trial be granted, because Ft iris was improperly admitted, as a witness : Batí do not concur in (be opinion expressed, that Tousey ought to have been admitted. He bad granted the land in question, to Peek, I lie grantor io Clark, with covenants of warranty. Although Peck and Clark have discharged him, which they may do, so far as respects themselves; yet his warranty is a covenant real, which wiii run will) I lie lamí, is inseparable from it, anil cannot be effectually done away without recon-veying the land itself. A future assignee may look back to the original grantor, notwithstanding this discharge. He is, therefore, interested in rpiic'.iug the title. This, I consider a clear principle of the common law, from which'it is dangerous to depart, without imperious reasons. The majority of the court were of this opinion, in the case of Abby v. Goodrich, 3 Day's Rep. 433.; but all agreed, that the cove-nantor, in that case, had another interest, which would exclude him.

Some of the other .lodges did not concur entirely in the opinion delivered by .1 udge ingersoll; but no minutes of the observations made by them are preserved.

New trial advised.