Selover ex rel. Barrows' Administrator v. Rexford's

The opinion of the court was delivered, May 15th 1866, by

Woodward, C. J.

On the 14th of December 1846, Isaac Selover recovered a judgment against Samuel Rexford in the Supreme Court of the State of New York, which he assigned, on the 8th day of September 1851, to Aaron Barrows, whose administrator brought the present suit to recover the amount of the judgment. The defence was that the judgment had been paid to Selover, about the 9th of February 1847, by one Henry P. Yeomans, at the instance and for the benefit of Rexford. Richard Steele proved this payment by Yeomans, and swore that the judgment was to be satisfied or assigned as he (Yeomans) might direct.

Nathaniel Mann testified to a transaction at his house in the city of New York on the 3d of October 1847, between Rexford and Yeomand, in which Rexford conveyed to Yeomans a tract of land in Jackson township, Tioga county; and Yeomans agreed to pay notes amounting to about $3800, in the hands of Selover and Steele, as part payment for the land. The agreement, said this witness, had been made before, and they called my attention to it as a witness. I made a memorandum of it at the time, and read it over to them.

The 1st error assigned, is that the court charged the jury that this memorandum corroborates the recollection of the witness, in regard to the dates and terms of the arrangement.

We can see no force whatever in this assignment. The credibility of both Steele and Mann, and the prospect and effect of their testimony, were fairly submitted to the jury, and this observation on the corroborative effect of the memorandum strikes us as perfectly harmless even if erroneous, though we see no ground to doubt its accuracy. If the memorandum was .given in evidence it was not excepted to, and surely it was in the nature of corroborative evidence. It is always competent for a witness to refresh his memory by memoranda made at the time of the transaction of which he speaks, and where the memorandum has been received in evidence without objection, and it recites the substance of the very transaction testified to, it is not error for the court to say that it corroborates the witness.

The only other error is the rejection of Henry P. Yeomans as a witness.

It would seem that Yeomans was the owner of the Rexford note to Selover, at the time he purchased the Jackson land. Under the instructions given the jury must have found that that note was part of the consideration of the land, and of course Yeomans ought to have given it up to Rexford when the deed was delivered, or satisfied the judgment which had been obtained upon it. Instead of which he waited nearly four years, and then took an assignment from Selover to Barrows witnessed by himself, and after the death of Barrows, who was said to have lived in Massachusetts, raised up an administrator for him here, and instituted this suit to recover the judgment against Rexford’s estate.

The court, no doubt regarding Yeomans as the beneficial owner of this claim, refused to let him testify, and we think they were right. If Steele or Mann were believed, Yeomans had become the owner of the note and judgment, and as such received a full equivalent for them. Now that he could not make himself a witness, by assigning the debt to Barrows, is exactly what was decided in Post v. Avery, 5 W. & S. 510, and that Barrows, if indeed he was not a myth, took the judgment subject to all existing equities between the original parties, is an indisputable principle of law. If Barrows was indeed a purchaser of this judgment in September 1851, he should first have satisfied himself that it was subject to no defalcation, and had he inquired of Selover he would have learned that it had been, paid long ago. Much more certainly he would have learned the same thing from Rexford, but inquiring of neither party he took it with its imperfections on its head, and one of these was the disqualification of Yeomans, a former owner, to support it by his oath.

The judgment is affirmed.