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disputed or unsettled line is valid, if executed immediately, and possession accompanies and follows such agreement. So, also, where there has been no express agreement, long acquiescence by one in the line assumed by the other is evidence of an agreement." (Kip v. Norton, 12 Wend. R. 127.) And in an early case in the old supreme court of New York, the court said: “ After the parties have deliberately settled a boundary line between them, it would give too much encouragement to the spirit of litigation to look beyond such settlement, and break up the line 80 established between them. (Jackson v. Corlear, 11 Johns. R. 123.)

A distinguished judge in the court of appeals of the state of New York excepts to the ground that the rule in question is based upon the idea of an agreement, either express or implied, as to the location of the line, and argues that it is an error to assume that a parol agreement, either actual or supposed, fixing the boundaries to lands, lies at the foundation of the rule. He says:

“It is true that several of the cases make this suggestion, and speak of the long acquiescence of the parties as affording evidence of such an agreement. It is difficult, however, to support the rule upon such a basis. If acquiescence for a great number of years in an erroneous location is obligatory upon the parties merely as evidence of a previous parol agreement, then it must follow that any other proof establishing such an agreement would be equally conclusive upon them. If it is the agreement which binds, the nature of the proof, provided it be competent, is of course immaterial.

It seems impossible to hold that a mere parol agreement, adopting a line different from that described in the deed, is obligatory, without violating the statute of frauds, both in its letter and

* The rule seems to have been adopted as a rule of repose, with a view to the quieting of titles; and rests upon the same reason as our statute prohibiting the disturbance of an adverse possession which has continued for twenty years.” And the views of the learned judge were adopted as the doctrine of the court; and it was accordingly held, that the acquiescence of adjoining proprietors, for forty years in the practical location of a boundary line between their lands, is conclusive, although it be proved that such location was originally made under an agreement resulting from a mutual mistake as to facts. It was, however, conceded in the case, that there may be cases in which an express agreement recognizing an erroneous boundary will conclude

spirit. *

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a party; as where the other party, acting upon the faith of such agreement, has made expensive improvements, the benefit of which will be lost to him if the line is disturbed. But it was claimed, that such cases, if they exist at all, rest upon the principle of estoppel in pais. (Baldwin v. Brown, 16 N. Y. R. 359.)

All of the authorities cited upon this question of practical location are from the New York reports, but the rule is of universal application, and is alike applicable in all the states.

With respect to the competency of witnesses in the action of ejectment, little need be said here, from the fact that the policy is fast extending in the United States of admitting any person to testify as a witness in all actions who is neither directly nor indirectly a party to the action; and in some of the states the parties themselves are admitted as witnesses in their own favor. But in those states where the common law still governs in such cases, no person is permitted to testify in a case who is interested in the event of the action. Where a witness stated that the lessor of the plaintiff had formerly assigned to him the premises in question for a particular purpose, but that he had given up the deed, and did not believe that he had any beneficial interest in the premises, he was considered incompetent. (Doe v. Bragg, 1 Ryan & Moody's R. 87.) So a tenant in possession is an imcompetent witness in support of the title of the defendant under whom he holds. (Doe v. Pye, 1 Esp. N. P. C. 764. Doe v. Williams, Cowp. R. 621.) And where a prima facie case has been made out against the defendant as tenant in possession, a witness is incompetent to prove himself the real tenant, and that the defendant was only his bailiff. (Doe v. Wilde, 5 Taunt. R. 183. Doe v. Bingham, 4 Barn. & Ald. R. 637.) But a grantor, with covenant of warranty, is a competent witness for his grantee, in an action of ejectment brought by him, although he would not be a competent witness to support his vendee's title in an action against him for the premises by a third person. (Jackson v. Rice, 3 Wend. R. 180.) And a witness was held competent in ejectment who had a judgment against the. testator whose title was in dispute, but who had left abundant personal property to satisfy the judgment, and whose administrator had given ample bonds. (Youst v. Martin, 3 Serg. & Rawle's R. 423.) So also, in ejectment, a creditor of the debtor from whom the plaintiff took the land by levy on execution, is a competent witness to prove the deed of the defendant fraudulent, unless he has attached or levied upon some portion of the land contained in the defendant's deed. (Lillie v. Wilson, 2 Root's R. 517.) But a tenant's wife is not a competent witness for the defendant in ejectment where such tenant is in possession of the premises and a general defense has been entered. (Pipher v. Lodge, 16 Serg. & Rawle's R. 214.) An heir apparent is a competent witness in ejectment for the land; but a remainderman, who has a personal interest, and not a mere expectancy, is incompetent. (Smith v. Blackham, 1 Salk. R. 283.) And it has been held, that a joint-defendant, who suffered judgment by default, was a good witness to prove the other defendant in possession. (Doe v. Green, 4 Esp. N. P. C. 198.)

In a word, it may be affirmed, that at common law the testimony of the parties to the action, of persons deficient in understanding, of persons insensible to the obligations of an oath, and of persons whose pecuniary interest is directly involved in the matter in issue, is rejected, as well in the action of ejectment as in all other actions; but, as before stated, the common law in respect to the competency of witnesses has been greatly modified in many of the states.

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CHAPTER XXXIII.

OF THE TRIAL AND SUBSEQUENT PROCEEDINGS IN THE ACTION OF

EJ TMENT -T JUDGMENT IN THE ACTION THE COSTS —THE EXECUTION — WRIT OF ERROR.

There are some peculiarities in respect to the trial of the action of ejectinent at common law, which are entitled to notice. The death of the lessor of the plaintiff does not abate the action. This point has frequently been decided, although the death of the lessee in ejectment may be received as an excuse for not proceeding to the trial, according to the practice of the court. (Fine v. Jackson, 8 Johns. R. 495. Austin ads. Jackson, 1 Wend. R. 27. Doe v. Butler, 3 ib. 149, 153. Robertson v. Morgan, 2 Bibbs' R. 148.

3 Kinney v. Beverly, 1 Hen. & Munf. R. 531.) In all these cases 'the death of the lessors occurred after the commencement of the action; but if it appears that the lessor of the plaintiff was dead when the suit was commenced, it is a ground of nonsuit on the trial, and as a general rule the demise of a lessor who died before the commencement of the action will be struck out of the declaration, on motion of the defendant before trial, without costs to be paid to the plaintiff, on the ground that it is an irregularity in the plaintiff to make a dead man a lessor. Although the demise is a fiction, the fiction must be such as might by possibility have been true, which cannot be the case where the lessor of the plaintiff was dead at the time of the commencement of the action. (Lee v. Grunlee, 6 Munf. R. 303. Doe v. Butler, 3 Wend. R. 149.) But it has been held in the state of Maryland, that an ejectment abates by the death of the lessor of the plaintiff. (Howard v. Gardiner, 3 Har. & McHenry's R. 98.) And yet it has been held there that the death of one of the lessors of the plaintiff does not abate the action, but that the death of such lessor may be snggested after the jury are sworn, and his heir need not appear or be made a party. (Howard v. Moale, 2 Har. & Johns. R. 246.) At the common law, where the lessor of the plaintiff in ejectment is only a tenant for life, his death will not abate the action, nor can his death be pleaded puis darrein continuance, because his right is supposed to be in the plaintiff, his lessee, who may proceed for the damages occasioned by the supposed ouster, although he cannot obtain possession of the land. In such case, of course, the title of the plaintiff terminates with the death of his lessor, and the plaintiff would have no title to turn the defendant out of possession; but he would, nevertheless, have a title to the mesne profits and the costs of the suit, and should have a judgment to enable him to recover them. (Vide Thrustout v. Gray, Strange's R. 1056. Thrustout v. Bidwell, 2 Wils. R. 7. Jackson v. Davenport, 18 Johns. R. 295.) And indeed it seems that if the plaintiff in ejectment convey the land in controversy during the pendency of the action, he may, nevertheless, proceed to the trial of the suit, and recover his damages and costs. (Murray v. Garretson,

v 4 Serg. & Rawle's R. 130.) But in another case the court held that if a defendant shows that the title to the land in dispute has passed from the plaintiff during the action, the plaintiff can recover damages only up to the time of the passage of the title, and this is doubtless the true rule in such cases. (Neel v. Deens, 1 Nott & McCord's R. 210.) If the defendant in ejectment refuse to appear and confess lease, entry and ouster, the plaintiff must be nonsuited, but he will be entitled to his costs; and when the plaintiff is nonsuited from the defendant's refusal to appear and confess, the cause of the nonsuit should be specially indorsed upon the postea, in order to entitle the plaintiff to have his costs taxed and allowed, upon the consent rule; and also to enable him to have judgment entered against the casual ejector. (Turner v. Barnaby, 1 Salk. R. 259. Doe v. Roe, 2 Bing. R. 169. Doe v. Roe, 1 Barn. & Cres. R. 118.)

If there be several defendants, and some of them refuse to appear and confess, it is the practice to proceed against those who do appear, and enter a verdict for those who do not, indorsing upon the postea that such verdict is entered for them, because they do not appear and confess: and the plaintiff's lessor will then be entitled to his costs against such defendants, and to judgment against the casual ejector for the lands in their possession. (Claxvene v. Leach, Lord Raymond's R. 729. Hambleton v. Wells, 4 Call's R. 213. And vide Bratton v. Mitchell, 5 Watts’ R. 69. Jackson v. Travis, 3 Cow. R. 356. Carroll v. Norwood, 1 Har. & Johns. R. 167.)

An action of ejectment is noticed for, and brought to trial, under the same practice as in other cases. The cause may be noticed for trial as soon as the same is at issue as to all the parties, or at issue as to one or more of several defendants, and the default of the remaining defendants to appear and plead in the action. The issue is joined, as a general thing, on the plea of the general issue; and where one of two defendants appeared and pleaded to issue, and the other defendant disclaimed, it was held in Pennsylvania that the cause was not at issue as to both defendants. (Bratton v. Mitchell, supra.) Though there be several defendants in the action of ejectment who have pleaded to issue, the cause must be tried as to all at the same time, and where two or more defendants in the action make a joint defense, they will not be permitted at the trial to sever their defense. (Carroll v. Norwood, 1 Har. & Johns. R. 167. And vide Jackson v. Travis, supra.) If there be any material variance between the issue and the record, the defendant should, nevertheless, appear at the trial, and afterward move the court to set aside the verdict for the variance; because if he do not appear, he is out of court, and cannot afterward move to set aside the nonsuit for his not appearing; and the court will sometimes amend the nisi prius record, after such nonsuit or motion of the plaintiff, where it appears that there was some omission by reason of a mistake; in which case the defendant will

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