Hendricks v. McDaniel ( 1888 )

Blandford, Justice.

In this case, it appears that Amanda Andrews became the surety of a certain person for his forthcoming to answer to a criminal charge. The bond was estreated, and a final judgment of forfeiture taken in behalf of the governor against Amanda Andrews, as surety. The judgment was levied upon a certain lot of land in the city of Columbus; and Ella N. Hendricks, the plaintiff in error here, interposed a claim to the property. Upon the trial of the claim case, the sheriff was introduced, and testified that he went to this land and found certain persons in possession of it, and asked whether it was their land or not, and they said it was not, that they had rented it from Amanda Andrews, the defendant in execution, and that the land belonged to her. Claimant’s counsel objected to this testimony upon the ground that it was illegal; that the possession of Amanda Andrews could not be proved in that way; that the title could not be proved by the sayings of the parties in possession that Amanda Andrews owned the land. The court overruled the objection and allowed the evidence. The jury found the property subject; and the claimant moved for a new trial, which the court refused, and the claimant excepted.

We are of the opinion that the court ought not to have admitted this testimony for the purpose for which it was admitted. We do not think that the sayings of parties in possession proved that Amanda Andrews herself was in possession. While such statements would bind those parties as to any interest they had in the land, they were clearly inadmissible in this case to show the title of Amanda Andrews to the land. This testimony may have materially damaged the claimant. The claimant put in a deed from Amanda Andrews to her, made before the forfeiture ; and claimed that she was a bona fide purchaser. This deed was assailed by-the plaintiff in execution upon the ground that it was fraudulent; and upon the trial of the issue of whether the deed was fraudulent or not, these sayings of the tenants may have had a very powerful influence with the jury, as showing that Amanda Andrews was in possession after the deed was made, as a badge of fraud; but we do not think this testimony ought to have been admitted for the purpose for which it was admitted; and we think that on account of this error of the court a new trial should be granted. The judgment is therefore reversed.