Jackson ex dem. Dale v. Denison

4 Wend. 558

• Court: New York Supreme Court
• Decided: May 15, 1830
• Status: Published

Opinion

By the Court,

Savage, Ch. J.

Had it appeared positively’ that the plaintiff’s counsel had a counterpart to the agreement, there could have been no reason for calling on the defendant for the paper in his possession; the fact, however; was not proved. The only question therefore is whether the contents could be proved by the defendant’s counsel. The contents of such a paper seem to be considered a confidential communication between the client and counsel. (5 Stark. Ev. 396, n. b. 5 Esp. R. 120. 14 Johns. R. 399.) On this point therefore the judge erred.

Excluding the testimony of Mr. Gridley from the case, the Written agreement is excluded; and the question arises, whether without it the plaintiff shewed title to enable him fir recover 7 It appeared that Schuyler Livingston, Robert L. and John L. Were sons, and that Mrs. Cutting and Mrs. Dale were daughters of Walter Livingston, deceased; of these Schuyler and John were dead, and John without children. No title was shewn in Walter Livingston, nor in Cutting and wife: and if there is any proof of title, it is the admission of the defendant that Dale Was the owner. There is no evidence that Dale or any of the Livingstons had ever been in possession.

How far and in what cases admissions of title are to be received, are questions often arising. The cases have been fully reviewed by Sutherland, justice, in Jackson v. Cole, (4 Cowen, 593.) There the defendant had taken a deed from W. Cooper, whose wife, as defendant admitted, owned the' land ; and on this testimony it was held the lessors who were the heirs of Mrs. Cooper were entitled to recover. The' rule that admissions by parol are not evidence of title, is' shewn to be applicable to cases where title has been proved,- and parol evidence in such cases is incompetent to divest' that title; or where it appears that there are written conveyanees, which being higher evidence existing in the case, must be produced.

In this case it is evident that the defendant has no title, and the lessor Dale shews a paper title of only ten years standing, and no title in his grantor. It presents therefore the question whether the plaintiff can recover upon the admission of the defendant alone 1 I think he may. The admission is not to operate to divest a title previously shewn in the party making the admission; it is not to transfer title. Had it been in writing, or by accepting a written instrument in which the lessor asserted title, it would be sufficient. The only reason why a written acknowledgment is better than a parol one as to its legal efficacy, is, that in certain cases a writing is required by the statute of frauds. This is not a case affected by that statute ; and I am therefore of opinion that the parol acknowledgment is valid and effectual.

Judgment for plaintiff.