Jackson ex dem. Marvin v. Hotchkiss , 6 Cow. 401 ( 1826 )

Curia, per

Woodavorth, J.

The evidence introduced «t the trial, to show that the contract had been rescinded, ■was irrelevant and improper. The fact, that the defendant, in 1806, took a deed of the premises from Steioart, is no defence ; the defendant being estopped from setting up a title against Marvin, under whom he held. It was an act done, for aught that appears, without Marvin’s knowledge ; and neither he nor his heirs can be affected by it, in an action of ejectment against the present defendant.

So also, the evidence that actions of ejectment had been commenced against the defendant, and successfully defended by him, was wholly immaterial. It is not pretended that Marvin ever had notice of those suits. If he had, the question of rescinding his contract had no connexion •with that proceeding.

In judgment of law, there is no sufficient evidence to raise the question whether the contract was rescinded ; and, consequently, it should not have been submitted to the jury.

More than twenty years had elapsed, between the time the last payment was to have been made, and the commencement of this action. Unexplained, I apprehend, the presumption of payment is made out. That presumption is, however, sufficiently repelled. Marvin died after the money became due. His papers relating to lot 44, appear to háve been in the possession of Mr. Sherwood, his attorney, from 1807 to 1821. This sufficiently explains the oihission of the contract in the inventory, filed by the administrators. At the time of making out the inventory, they probably had no knowledge that the contract existed. It is not urged that payment was ever made to Sherwood.

On the case before us, the plaintiff Avas entitled to recover,

The verdict must be set aside; and a new trial granted, with costs to abide the event.

New trial granted.