McFadden v. Wallace

Sawyer, C. J., delivered the opinion of the Court :

This is an action commenced on the 30th of December, 1864, to recover land of which defendant, Wallace, had been in the possession and occupation some fourteen years—he having entered upon the land in the fall of 1850, or spring of 1851, and erected buildings and commenced residing thereon as early as the spring of 1851. The plaintiff claims by prior possession, and under the Van Hess Ordinance, by virtue of such prior possession. He also claims that Wallace, after his entry, upon plaintiff’s claiming the land, verbally agreed to recognize his right, hold, as tenant of the plaintiff, for three years, at fifty dollars rent per annum, and paid rent accordingly; and that the possession of the defendant, therefore, for the purpose of vesting title under the Van Ness Ordinance, was the possession of plaintiff. The prior possession of plaintiff, and the tenancy, are denied. Defendant also insists, that if plaintiff ever had any right, by prior possession, it was lost by abandonment. The trial was had in 1866, and the testimony, as usual in such cases, is voluminous, and mostly oral.

We shall not discuss all the numerous points made, but only notice some that seem to be relied on with most confidence, and which will serve as examples of the whole. The plaintiff had given in evidence some acts claimed to be a recognition of a tenancy by defendant, and evidence of payment of rent on several different occasions. The lease, if any, was verbal. No receipt, or written evidence of any kind, is claimed to have ever been given to show payment of rent, and it curiously enough happened, that at every payment of rent for the three years claimed to have been made, some party, by mere chance, was present, and the parties so present were found and produced at the trial as witnesses from fourteen to fifteen years afterward; and although the circumstances were not remarkable, and there was nothing in particular calculated to impress them on the memory, each party very accurately remembered the important remarks made, the payment of rent, the amount paid, and the kind of coin in which it was paid; but the several payments made, when footed up, make an aggregate of considerably more than the amount of rent due under the agreement claimed to have been made between the parties. What is still more remarkable, is, that some of the witnesses upon the point had never thought of the circumstances from the time they transpired till they came on the witness stand; had never told plaintiff’s attorney about it; had never spoken to plaintiff about it; “never communicated with any human being on the subject, till now;” did not know how it happened that they were called as witnesses, yet were called to prove, were interrogated upon, and testified to, the very circumstances wanted, and nothing else. The testimony may all be true, but there are certain intrinsic improbabilities inhering in such testimony, as to render it, at least, extremely unsatisfactory, when introduced in support of so stale a claim. This being the state of the plaintiff’s testimony upon the vital point in the case, the defendant introduced the testimony of several witnesses, under objection and exception by plaintiff on the ground of immateriality, irrelevance and incompetency, of which Barrett’s testimony is an example. He was asked if he had ever heard of Wallace’s having a lease from McFadden of the Wallace tract? He answered that he never had. But he stated other facts, showing his intimacy with the parties at that time, and that his relations were such that in all probability he must have heard of it from the parties, had one existed. He had heard McFadden say that Wallace had taken the land from him, and he could not get it, but had heard nothing of a lease. He says, also, “1 should have known of a lease if it had existed in 1852 or 1853, I was so mixed up with them, and I think Wallace would have told.

I say, if Wallace had a lease I should more than likely have known it. He may have had one, and I not known it.” It is true that this is negative testimony, as all testimony that there was no lease must necessarily have been, and it may have been entitled to very little weight against positive and credible testimony to the contrary. But where the situation of the witness is such that he probably would have known or heard of a fact from the parties themselves, if it had existed, it affords, at least, some slight ground for the inference that the fact did not exist. We therefore think, that, in the condition of the evidence, the fact that persons, situate as the witnesses who testified on this point were, had not heard of any lease from the parties, was' admissible.

Declarations of a party are always admissible against himself, or those claiming under him, by conveyance made subsequent to the making of the declarations, without reference to the time when or place where they were made. The fact that McFadden’s declarations, as to his own and Wallace’s title were not made on the land, does not, therefore, render them inadmissible. Had McFadden sought to give his own declarations in evidence in his own favor, the question would' have been different. But the other party introduced them against himself.

We do not see that any injury could result from allowing Brennan & McHugh to defend the action as defendants. They succeeded to the interest of Wallace in the premises after the commencement of the action and before answer filed. They denied plaintiff’s title, and defended on the title of Wallace, their grantor. They did not deny defendant’s possession, so that was not in issue, and there was no obstacle to a recovery, had plaintiff made out a right to possession as against Wallace. It is very true that the Court, by permitting Brennan & McHugh to defend as parties succeeding to the interest of Wallace pending the action, under Section 16 of the Practice Act, could not have deprived plaintiff of a judgment for costs, damages, etc., for which Wallace would have been liable had plaintiff recovered. But the defense was made on Wallace’s title, and the plaintiff failed to recover at all.

If there was any error in vacating the order substituting Lawrence as attorney, no injury could have resulted, for he was again substituted before the trial, and afterward conducted the case to its termination. But we think there was no error in vacating the substitution under the circumstances of the case.

We think Ryan was a competent juror, after a careful consideration of his entire examination on this point.

There is no force in the objection to the testimony of the witnesses Kenedy, Thorne and Dorland. There was no question as to divesting a title once vested under the Van Hess Ordinance by subsequent declarations. The question was, whether a title ever vested under that ordinance. The testimony upon which the question depends, all consists of acts and declarations of McFadden, and in so stale a claim, all his acts and declarations, whenever made, are admissible against him for the purpose of ascertaining what he did really do to bring himself within the purview of the ordinance.

There is nothing of sufficient importance in the other points made, to require a more extended discussion; and, without particularizing further, we will only add that we find nothing in the record to justify a reversal of the judgment, or a disturbance of the verdict.

Judgment and order denying a new trial affirmed.