Giese v. Thomas ( 1826 )

Buchanan, Ch. J.

delivered the opinion of the Court It appears that issue was taken in this case, on a plea of property in the defendant, and it comes up on a rejection by the court below of the evidence offered at the trial on the part of the plaintiff.

There is no doubt the plaintiff might have shown that the property in question was sold by a constable to the defendant, in virtue of a fieri facias sued out on a judgment rendered by a magistrate against the witness Evans, in order to show in what manner the property got into the possession of the defen-i dant, and to let in the further evidence, that it had been previously sold by Evans and Coppack to the plaintiff, for a valúa» ble consideration, which Evans might have been called to prove, as in that state of things he could have had no interest opposed to his competency. For if the property, at the time of the supposed sale to the plaintiff, was in truth bound by the delivery of the fieri facias into the hands of the proper officer, Evans would have been answerable over to the plaintiff on the implied warranty of title, and consequently, in proving the sale to the plaintiff, he would have been swearing against his interest. And if on the contrary, it was not bound, the seizure and sale by the constable to the defendant, could not have had the effect to subject Evans to any liability to the plaintiff, on account of any implied warranty; but the remedy of the plaintiff would have been that which he is now seeking against this defendant; or an action against the constable for the wrongful taking. And in neither case would Evans have any interest of his own to subserve by proving the previous sale by Cop-pack, and himself, to the plaintiff.

But it certainly was not competent to the plaintiff to give parol evidence of the judgment and execution against Evans, ño foundation being previously laid for it. They should themselves, if in existence, have been produced; and the testimony of Evans, in relation to that matter, was clearly inadmissible.

Stripped then of all evidence of a sale to the defendant under an execution on a judgment against Evans, the offer to prove by him a sale of the property in question by Coppack, an£ himself, to the plaintiff, stands as the naked case of a vendor coming to sustain, by his own testimony, the title of his vendee, against a stranger claiming adversely, which cannot be permitted.

Evans is clearly interested on account of his implied warranty, in supporting the plaintiff’s action, and his testimony was properly rejected.

' JUDGMENT AFFIRMED.