Jackson exd em. Van Den Bergh v. Trusdell , 12 Johns. 246 ( 1815 )

Per Curiam.

The lessor of the plaintiff claims title to the premises in question, under the proceedings in partition in the year 1812. The defendant claims under Richard R. Van -Der Bergh, who was a party in partition, and who was in the actual possession of the premises at the time such partition was made. Upon the trial, o$ie principal question was, whether the defendant was in possession when tfeis suit ivas commenced. The declaration was served some time between the 1st and 9th of May, 1813. The defendant gave in evidence a lease from himself to his father, Stephen Trusdell, the elder, bearing date the 20th of April, 1813, and some proof was given of possession having been taken under this lease, in April; and to establish this fact, Stephen Trusdell, the lessee, was offered as a witness, to show himself in possession; but was not admitted. The case of Brant v. Dyckman, (1 Johns. Cas. 275.) is in point to show that the witness was incompetent. He was called for the purpose of showing himself in possession; he had, therefore, an immediate interest in preventing a recovery, for the purpose of protecting his own possession. This seems to be considered as a question sui generis, partly an interest in the question, and partly an interest in the event.' And it is one of those cases in which reason and sound policy lead to the exclusion jof the witness; as from the nature of the fact, there can be no inconvenience in requiring other proof, which it must always be in the power of the party to produce. (1. Johns. Rep. 162. Cowp. 622.)

The defendant is not entitled to compensation for improvements. B.y the act of 1801, under which the partition in this case is made, there is no provision whatever for payment for iihprovements. The provision on that subject in the act of 1785, (sess. 8. ch. 39. s. 6. Greenl. Ed. 168.) has not been continued. And there are no grounds upon which the defendant can claim, from the lessor, compensation for his improvements. He must look to the person from whom he purchased for his indemnity. The motion for a new trial must accordingly be denied.

New trial refused..