Patton v. Pitts , 80 Ala. 373 ( 1885 )

CLOPTON, J.

The sole question, raised by the assignment of errors, relates to the ruling of the court on the admissibility of evidence. The suit is a statutory action to recover the possession of lands. The plaintiffs derive title by purchase at a sale of the lands by the sheriff under an execution at law, as the property of Edwin S. Yarbrough. The defendants claim by conveyances from Yaughan, who purchased them at a sale by the sheriff under an order of court, as the property of B. T. Yarbrough. The main contention between the parties was, whether a deed made by B. T. Yarbrough to Edwin S. Yarbrough, bearing date August 25,1874, was in fact delivered prior toYaugnan’s purchase, which occurred March 12, 1875. On the trial of a former action brought by Edwin S. Yarbrough against a tenant of Yaughan to recover the lands, B. T. Yarbrough testified to facts tending to show the deed was not delivered until March 15, 1875. The witness having died, the defendants offered to prove what he testified in respect to the delivery of the deed on the former trial. The evidence was excluded by the court.

The conditions, on which the evidence of a deceased witness on a former trial may be reproduced on the trial of a subsequent suit, are that the matters in issue, and the parties are essentially the same in both actions — parties as thus used comprehending privies in blood, in law, or in estate. Cleavland v. Huey, 18 Ala. 343; Goodlett v. Kelly, 74 Ala. 213. A mere technical or nominal variation of parties will not exclude the evidence; but the adversary parties on both trials must be substantially the same. It is not sufficient, that the party, against whom the evidence is offered, was also a party to the former action. The evidence, being hearsay, is prima facie inadmissible, and it is incumbent on the party offering it to establish the existence of the conditions, on which its competency depends.

Passing other considerations, if it be conceded, that the plaintiffs are privies in estate with Edwin Yarbrough in the sense of the rule, which we do not decide, the question as thus presented is, whether the evidence of a deceased witness on the trial of an action of ejectment against a tenant may be reproduced on a subsequent trial between privies in estate to the plaintiff in the first suit, and the vendees of the landlord of the tenant ? When, the other conditions existing, the admissibility of such evidence depends on the question, whether the parties to the two trials are privies in estate, there must be such privity as could make the judgment in the former, evidence in the subsequent action. Bryant v. Urven, 2 Stew. & Por. 135; 1 Whar. on Ev. § 177. The record does not disclose, that the landlord had any notice of the suit, or that he appeared and assumed, or joined in the defense. A judgment against the tenant is not evidence against the landlord in a subsequent action for the recovery of possession, unless he had notice, or was admitted to defend, or in fact made defence. In such case, the judgment is res inter alias aetae. Smith v. Gayle, 58 Ala. 600; Chant v. Reynolds, 49 Cal. 213; Barlett v. B. G. L. & Co., 122 Mass. 209.

To constitute one person a privy in estate to another, such other must be a predecessor in respect to the property in question, from whom' the privy derives his right or title — a mutual or successive relationship. 1 Green, on Ev. § 189 ; Hunt v. Haven, 52 N. H. 162. As the lessor derives no right or title from the lessee, and does not claim under him, the vendees of a landlord derive none through him from a former tenant. For the purposes of title, they are entire strangers. Judged by this rule, the defendants are not privies in estate to the defendant in the former action. Not being privies in estate, the evidence would not be admissible against the defendants, and is not ■ admissible in their favor. Morgan, v. Nicholls, L. R. Q. C. P. 117; Foster v. Derby, 1 A. & E. 783. The record does not affirmatively show the existence of the conditions, on which the admissibility of the evidence depends.

Affirmed.