Thompson v. Schuyler ( 1845 )

The Opinion of the Court was delivered by

Catón, J.

This is an action of ejectment commenced in the Mercer Circuit Court at the May term 1844, by the present defendants against Gilbert Brewer. Declaration and notice in the usual form, and the defendant, Brewer, filed a plea of not guilty, at the May term 1844. At the September term 1844, we find the following order entered after the title of the cause. “By consent of parties, it is ordered by the Court that Abel W. Thompson be made defendant in the place of the now defendant, Gilbert Brewer, and leave given to plead anew and continued at the costs of plaintiffs.” No other pleadings appear in the case. The cause, at the May term 1845, was entitled as against Abel W. Thompson as defendant, and at that term was tried by a jury, and a verdict andjudgment rendered for the plaintiffs. The hill of exceptions show that the plaintiffs to maintain the issues on their part, offered in evidence an Auditor’s deed without a date, signed by James T. B. Stapp, for taxes for the year 1831, on a sale made in 1832, without any other proof of the sale, or that the pre-requisites of the law had been complied with. To the admission of this deed, the defendant’s counsel objected, for the reason that it was not shown to have been made upon authority of law, nor acknowledged; which objection was overruled by the Court, and the deed read to the jury, and the defendant excepted. The bill of exceptions further shows that the plaintiffs also offered to read in evidence a deed from Moulton and others to plaintiffs, which was acknowledged in due form before John N. Taylor, as a commissioner, to take the acknowledgments of deeds of the State and city of New York, without any certificate of the official character of the commissioner. The objection was overruled, the deed read, and an exception taken.

The first question naturally presented for the consideration of the Court is, whether the Court obtained jurisdiction of the person of the defendant, Thompson. The solution of that question depends entirely upon the question, whether Thompson appeared in the Court below, and by his own consent was made a party defendant in the cause, in place of Brewer, his tenant, as we presume. We think this sufficiently appears from the record. It appears from the record that at the September term 1844, by consent of parties, Thompson was made defendant in place of Brewer. By this we understand, that the order was made with the consent of Thompson, as well as both the former parties to the suit. But if there were any doubts on this subject from the language of the order, that doubt would be removed by the subsequent entries on the record, which show that Thompson appeared and defended the cause at every step, from the time saidlorder was entered, till the final judgment was rendered. We are of opinion, that it sufficiently appears that Thompson was made defendant by his own consent, and was, as such, properly ¿party to the suit.

No new declaration was filed against Thompson, after he became defendant, nor was the original declaration so altered, or amended as to present his name as defendant therein. Nor did Thompson file any new plea, but the cause was tried on the issue as made up with Brewer, while he stood as defendant. By the ejectment law of 1839, fictitious parties are dispensed with and the suit is required to be commenced against the person in possession, by the real plaintiff, directly. Where the suit is commenced against a tenant, we do not doubt the right of the landlord to appear, and defend and control the cause in the name of the tenant, if he will indemnify him against costs. Nor do we see any inconvenience or impropriety in allowing the name of the landlord to be placed on the record as defendant, in place of the tenant; but there would be a manifest impropriety in going back and altering the declaration so as to show that the case was .originally commenced against the 'landlord, unless he would file a stipulation admitting his possession at the time of the commencement of the suit; for it is necessary for the plaintiff to show, in addition to his title, that the defendant was in possession at the time. On application of the landlord, and on filing such a stipulation, the Court might direct the pleadings to he altered as desired. In this case, no such application was made, nor did Thompson ever file a new plea under the leave given him at the time his name was placed upon the record; but he chose to go to trial upon the issue formed by Brewer, and it does not appear but under that issue his rights could be properly tried.

We will next inquire whether the Court erred in overruling the objections to the Auditor’s deed. To that deed it was objected first, that it was not shown to have been made upon authority of law; and, secondly, that it was not acknowledged. If, under the first objection, we are to understand that it should have been shown that all the pre-requisites which the law requires, should have been shown to have existed, before the Auditor was authorized to make the deed, in order to entitle it to be read in evidence to the jury, it was not well founded. That question was decided at the last term, in the case of Vance v. Schuyler, 1 Gilman, 160. Under this broad objection, however, it may possibly be said, that although no such intimation has come from counsel, that, as there is no date to the deed, the presumption is that the deed was made by the Auditor, after the 27th day of February, 1833, when the laws of 1827 and 1829, which authorized the Auditor to make such deeds, were repealed. The time of the execution and the delivery of an Auditor’s deed may be proved by parol, as well as of any other deed, so that it was competent for the party to show by parol, that this deed was made before the repeal of the law under which it was made, and when the Auditor had authority to make it. This Court has often decided the principle, that when the propriety of the decision depends upon the state of the proof which may have been given, and there is no intimation in the bill of exceptions that the proof, which rendered the decision proper, was not given, the appellate Court will presume in favor of the decision below, rather than against it; and that the necessary proof had been presented, and we cannot doubt that counsel prepare their bills of exception in view of that rule; and in reference to that rule they are signed by the judge. If the rule were understood differently, the counsel on the other side would take care that the evidence is in, showing the propriety of the decision; but as the rule is universally understood, the party taking the exception shows affirmatively that the decision was erroneous, or at least show, that the objection was made for the want of such proof. The presumption then is, that there was proof tending to show that the deed was made before the law of 1829 was repealed, if indeed that question was ever raised, or thought of in the Court below, which is very doubtful from the bill of exceptions. In the case of Graves v. Bruen, decided at the last term of this Court, (1 Gilman, 167,) it was held that an Auditor’s deed need not be acknowledged or recorded.

The only remaining question in this case was decided by this Court in that of Vance v. Schuyler, before referred to, where it was held, that no certificate of the official character of a commissioner in another State, before whom the acknowledgment of a deed is taken, need be produced. That disposes of the objection to the deed of Moulton and others, which concludes the examination of the errors assigned.

The judgment of the Circuit Court is affirmed with costs.

Lockwood, J., dissented.

Judgment affirmed.