Cook v. Knowles

Graves, J.

April 7th, 1875, Cook brought ejectment against Knowles for one eighty acre lot in Jackson county. Both parties asserted title under John B. Tuttle, Cook as purchaser on an execution sale under a judgment in his favor rendered in an attachment suit against Tuttle, and the defendant Knowles as grantee of his father Benjamin Knowles who held as grantee of Tuttle. The attachment was levied on the land November 21st, 1854. On the 11th of April, 1855, judgment was given; on the 14th execution was issued and two days later was levied on the land. June 9th, 1855, the sheriff sold to Cook, and on October 18th, 1856, deeded to him pursuant to the levy and sale. Knowles gave in evidence first a record of a deed of the land from Tuttle and wife to Benjamin Knowles. The deed and certificate of acknowledgement bore date November 11th, 1854, or ten days earlier than the levy of the attachment. The date of the record was, however, December 1st, 1854, or some ten days later than the levy. Knowles also made proof of the record of a deed from his father Benjamin to himself. This deed was dated January 20th, 1870; the record, April 17th, 1875. Cook produced one Snow as a witness and offered to prove by him certain conversations on the premises between Benjamin Knowles and Tuttle in the fore part of December, 1854, relating to the deed from the latter to the former and the time of its delivery, and tending to show that in fact it was not delivered until after the levy was made under the attachment, and when the offer of this evidence was made the counsel for Cook in reply to a question by the court, observed that it was not expected to show that when the suggested conversation occurred any new bargain was made or that anything was done in respect to the deed; that the conversation related to what had been done just previously.

The court1 sustained an objection to the offer, and refused to allow the evidence to be given. Whether the deed from Tuttle to Benjamin Knowles was in fact delivered before or after the levy of the attachment was a vital question, and the true date of the fact of delivery was lawfully provable by matter outside the deed and by parol. Mayburry v. Brien, 15 Pet., 21-38; Woodward v. Woodward, 4 Halst. Ch., 779, and authorities.

An attempt to make the instrument itself conclusive of the actual date of its delivery would lead to the absurdity of seeking to allow it to operate as a deed for the very purpose of proving it to be one. ■

Was the conversation between Tuttle, the attachment debtor and predecessor in title of both parties, with Benjamin Knowles, the immediate grantee of Tuttle and grantor of defendant, admissible to show that the deed from Tuttle was not delivered, and hence that the grant did not take effect, until after the levy. The conversation occurred, according to the offer, ■ on the premises and a few days after the deed from Tuttle was placed on record, and it related to matters not then occurring, but . to such as had taken place a little while before.

If the offer had been allowed and the evidence had been given, it would have been evidence of an admission by Benjamin Knowles, the purchaser from the execution debtor and the grantor of defendant, while in possession and before sale to defendant, that the deed was in fact delivered after the levy, and further that his holding was actually subordinate to the levy.' Indeed, it would have been evidence tending to show that Tuttle, the attachment debtor, and Benjamin Knowles, his grantee and the grantor of defendant, combined to make use of the deed with an untrue date in order to overreach the attachment levy. In speaking of the proposed evidence in this manner, it is not intended to give any opinion of its weight or trustworthiness. Whether a jury would give it any credence, or if any, with what effect, is not the inquiry now. The present question concerns its competency alone, — relates to its fitness to be considered by the jury at all. There is some confusion in the books concerning the occasions proper for admitting declarations of strangers to the cause in disparagement of title and the ends to which it ought to be restricted. But I think the evidence which was offered and rejected here was admissible upon principles settled in this State and generally approved elsewhere. The cases are too numerous to be fully cited. A few may be specially referred to, and the first to be noticed is Bower v. Earl, 18 Mich., 367. The action was ejectment, and we held that statements made by a former grantor of one of the parties, while in possession, concerning the extent of his holding and the place of the dividing line between him and an adjoining proprietor, were competent to explain the nature and extent of his possession, and we expressly approved the doctrine stated by Mr. Greenleaf. 1 Greenleaf's Ev., § 109. In Norton v. Pettibone, 7 Conn., 319, an ejectment case, the plaintiff claimed title by virtue of the •levy of an execution in his favor against Alva Marks, made March 11th, 1825. The defendants were the widow and heir-at-law of Alexander Pettibone, from whom they claimed. His title was by deed from Zechariah Marks who derived title from Alva Marks, the execution debtor before mentioned. The plaintiff contended that the deed from Alva to Zechariah was made to defraud Alva’s creditors, and in support of this charge he offered to prove by one Lewis that Zechariah, after the deed to him and after he had taken possession under it and before his deed to Pettibone, had acknowledged that the deed from Alva was without consideration and made to defraud Alva’s creditors. The evidence was duly objected to but admitted. In sustaining the ruling, Judge Daggett, speaking for the court, observed: “ That such declarations, so made, are admissible, I had supposed to have been too long and too well settled to be doubted. It has been so ruled more than twenty times within the last forty years. Declarations of a person, while in possession of the premises, against his title, are always admissible, not only against him,- but against those who claim under him.” After citing several cases,, and among them, Beers v. Hawley, 2 Conn., 467, he added that the point was considered in that ease “and the whole court concurred in the admissibility of the evidence;” that Judges Swift, Hosmer and Gould respectively gave opinions, and all recognized in direct terms this doctrine.

Bridge v. Eggleston, 14 Mass., 245, was a writ of entry. The demandant claimed under an execution he levied on the premises as the property of Joseph Goodwin, November ,15th, 1811. The tenant claimed to hold under a deed from the same Goodwin, dated October 6th, 1809, acknowledged and recorded. The demandant undertook to show that this deed was made without good and valuable consideration, and was not in good faith, but made to delay or defeat the creditors of Goodwin. It was admitted that demandant was Goodwin’s creditor at the date of the deed and long before, — his claim originating in consequence of the liability of Goodwin and other directors of the Berkshire bank in their individual capacity. The demandant proved that the bank stopped payment in August, 1809. The court admitted, against objection, evidence of declarations by Goodwin before his deed to Eggleston tending to prove a fraudulent purpose on his part to dispose of his property in order to keep it away from creditors, and it was held on error that the evidence was proper for the jury.

Jackson v. Bard, 4 Johns., 230, was an action of ejectment. The plaintiff made title under a mortgage given by one Dickenson. The defendant claimed under one Smith, who assumed to be grantee of Dickenson. The plaintiff insisted that the deed from Dickenson to Smith was antedated for the purpose of overreaching the mortgage, and he was allowed to prove admissions made by Smith while he was in possession and before he sold, that the deed was antedated, and other statements tending to prove the fact. On error the court said: “ These declarations would have been good against Smith, and are also competent evidence against all who claim under him. This principle has been repeatedly recognized, both in onr own and in the English courts. * * Whether the deed from Dickenson to Smith was actually executed at the time it bears date, was a question proper for the consideration of the jury.”

The following cases may be consulted also: Weidman v. Kohr, 4 Sergt. & Rawle, 174; Pickering v. Reynolds, 119 Mass., 111; Padgett v. Lawrence, 10 Paige, 170; Vrooman v. King, 36 N. Y., 477; Tipton v. Ross, 10 Ohio, 273; Woolway v. Rowe, 1 Ad. & El., 114; Noyes v. Morrill, 108 Mass., 396; Crippen v. Morss, 49 N. Y., 63; Newlin v. Lyon, id., 661; Smith v. Powers, 15 N. H., 546; Hobbs v. Cram, 22 N. H., 130; Walcott v. Keith, id., 196; West Cambridge v. Lexington, 2 Pick., 536; Regina v. Exeter, L. R., 4 Q. B., 341.

Under the doctrine recognized in Bower v. Earl and expounded in the other cases it seems quite plain that the proof which was offered and rejected was admissible to the jury. The defendant further contends that assuming the rejection of the offered proof to have been error, still it was not an error which worked any prejudice, because, as he claims, the plaintiff, as appears from the record, failed to make out a case. The grounds of this position require only a few words. First, it is said the plaintiff was bound to make proof that the sheriff’s sale was advertised, and yet gave no evidence tending to show it. It is a sufficient answer to say that the want of notice would not in this State invalidate the title. The sheriff may be liable, but the innocent purchaser cannot be prejudiced. The certificate of sale and deed are his evidence of title. Spafford v. Beach, 2 Doug. (Mich.), 150. Second, it is said the premises had been held adversely for twenty years when this suit was commenced.

There is no decisive proof in the record of a continuous possession by the defendant and his father prior to April 7th, 1875, when the suit was commenced.

But one thing is quite clear, and it is that the plain-. tiff acquired no complete legal title or any right of possession until October, 1856, when the redemption was over and he obtained his deed, and this was less than twenty years before suit. No one could raise a right against him to the premises by an adverse holding whilst he was not invested with the legal title and could not enter at all for his own protection.

There could be no such thing as a holding adverse to him so long as he had no right or title under which to make entry or justify possession.

Not having a right of entry, and hence not being kept out, no right of his could be cut off by the possession of others.

It is unnecessary to advert to other considerations at. present which the case suggests. The judgment must be reversed with costs and a new trial ordered.

Marston, J., concurred.