Reid v. Stanley , 6 Watts & Serg. 369 ( 1843 )

The opinion of the Court was delivered by

Kennedy, J.

The first error assigned is an exception to the admission of Hugh Buck as a witness on behalf of the defendants below. It is alleged that he was interested in the event of this suit, and liable to the plaintiff in case of his recovery, for the mesne profits of the property in dispute from the 1st day of June, at least, if not from the 27th day of May preceding, 1836, to the 4th day of the same June, when he parted with the possession of the lot in question to William Y. Birch. This action was commenced on the 12th October 1837, and tried on the 2d January 1842. The plaintiff claimed under a deed of conveyance from Henry Pratt, dated 27th May 1836, but never made any demand of the lot from Buck, who held the possession of it at the time as the tenant of Henry Pratt, the plaintiff’s grantor, to whom he paid the rent agreed on for it up to the 1st day of June 1836. And indeed it appears, according to the understanding between Pratt and the plaintiff, that Buck was not to give the possession of the lot to the plaintiff until the 30th June 1836. This appeared, on the trial, from a written notice to that effect signed by Henry Pratt and addressed to Hugh Buck, the witness, requiring him to leave and deliver up the possession to Isaac E. Reid, the plaintiff, to whom, as Pratt mentions, he had let the same. Under these circumstances, it would seem to be doubtful whether the plaintiff could at any time have held the witness accountable to him for the rents or mesne profits of the lot in question ; and more especially as it was not the lot to which Pratt thought, at the time, he had a title, and believed he was conveying to the plaintiff. The lot to which Pratt thought he had a right, was No. 38, which he, as well as Buck, had mistaken the location of lot No. 39. They had transposed the location of the two lots, Nos. 38 and 39, so that the lot actually numbered 39, the one now in question, was in reality.Pratt’s lot, but was considered and believed to be the lot that was numbered 38, which had been devised by John B. Dumontet to William Y. Birch, who sold and conveyed the same to the witness, Hugh Buck, who, under the mistake mentioned, very innocently put buildings and improvements on lot No. 39, instead of lot No. 38, to the value of $1400. Reid, the plaintiff, however, who was employed by Buck to examine into Buck’s title to the lot which he was improving as his own, discovered the mistake, but concealed it from Buck until he (Reid) became the purchaser himself of lot No. 39, from Pratt, and until Buck had sold and conveyed the lot back, as he supposed, with the improvements made on it. by him, to William Y. Birch. The plaintiff knowing that Buck, through mistalte, had made all his improvements upon lot No. 39, instead of lot No. 38, bought No. 39 of Pratt, the latter believing, at the time, that it was without any building or improvement upon it other than a fence of some sort which had been put around No. 38 by Buck, supposing it to be No. 39. The plaintiff having thus purchased the lot No. 39 of Pratt, with valuable improvements made upon it by Buck, as an unimproved lot, and for a consideration which was deemed equal only to its value in that state, might well feel somewhat diffident about calling on Buck to demand the possession of it from him. And, indeed, it seems, he never did. Buck, however, in the course of a few days after the plaintiff purchased of Pratt, sold and delivered the possession of the lot to William Y. Birch, against whose assignees or their tenants this action is brought. But as to lot No. 38, which Buck, as also Pratt, supposed was Pratt’s lot, Buck never did anything with it after the plaintiff purchased of Pratt. It does not appear that he used or occupied it in any way. And it is abundantly clear that his occupation of lot No. 39, which is the lot claimed by the plaintiff, was under a mistake, into which Mr Pratt, the owner thereof, as well as himself, fell, and that he would have been greatly the loser had he not sold back to William Y. Birch. And it is equally clear, that if the plaintiff were to recover the lot in question, with all the improvements put on it by Buck, he would gain what he never paid for, and what the owner of the lot never intended to sell, or supposed that he was selling when he sold to him. Under such circumstances, the claim of the plaintiff for mesne profits, against Buck, in any event of the suit, would not seem to have much, if any equity in it. But, in point of law, how can Buck be considered so interested in the result of this suit as to render him an incompetent witness for the defendant, on the score of interest 1 It appears to me, that he can neither gain nor lose by the direct legal operation and effect of the judgment in this case, nor that the record can be legal evidence for or against him in any other action; and this would seem to be the general rule laid down for testing the competency or incompetency of a witness on the ground of interest. Bull. N. P. 284; Bent v. Baker, (3 T. R. 27); per Tindal, C. J. in Doe v. Tyler, (6 Bing. 394); Rex v. Boston, (4 East 581), per Lord Ellenborough; Greenl. Ev., pl. 390. A recovery in ejectment, in general, like judgments in other cases, only binds parties and privies. Chirac v. Reinicher, (11 Wheat. 280). Hence the judgment is not evidence against a previous occupier. Bull. N. P. 87. Therefore Buck, being neither party nor privy to this action, though a previous occupier of the lot in question, could not be affected by the judgment that might be given in it. Even in an action brought against a landlord for mesne profits after a judgment by default against the casual ejector, such judgment cannot be given in evidence against him without proof that he received due notice of the service of the ejectment upon the tenant in possession. Hunter v. Britts, (3 Camp. 455).

It has, however, been objected, that a recovery in this action was essentially necessary, in order to enable the plaintiff to maintain an action against Buck, the witness, for mesne profits ; that such action could not be maintained by the plaintiff until he gained possession of the lot, and that such possession as would enable him to maintain the action, could only be acquired by means of a recovery thereof in ejectment. It may be conceded that such action cannot be maintained by the plaintiff against Buck until he shall have gotten possession of the lot; but then it is a mistake to say that it must necessarily be acquired by means of a recovery in ejectment; for if the plaintiff can show that he has the freehold, and is entitled to the possession, he may enter upon the lot without legal process of any description whatever; and having thus acquired possession, may maintain the action in the same manner and to the same extent that he could have done had he been put into the possession by reason of a recovery in ejectment. Judge Blackstone says: “ before entry and actual possession one cannot maintain an action of trespass, though he hath the freehold in law. And therefore an heir, before entry, cannot have this action against an abator; though a disseisee might have it against the disseisor for the injury done by the disseisin itself, at which time the plaintiff was seised of the land; but he cannot have it for any act done after the disseisin, until he hath gained possession by reentry, and then he may well maintain it for the intermediate damage done; for after his re-entry, the law, by a kind of jus postliminii, supposes the freehold to have all along continued in him.” 3 Bl. Com. 210; 11 Co. 5; 4 Kent’s Com. 119; Co. Litt. 257 a, 275 b; 1 Co. 98; 1 Leo. 302; Tobey v. Webster, (3 Johns. 468); 13 East 489; Willes 329; 2 Stran. 1086; Note (e) Thomas’s Coke 58 (72). If the authorities just cited are not Sufficient to show that the plaintiff in this action'after making such entry and upon showing his right to the freehold and possession in the lot, could maintain his action against Buck for the mesne profits during the few days that he may have occupied the lot after the plaintiff acquired his right, I apprehend, that a recovery in ejectment would not enable him to do so. We, therefore, think that Buck was a competent witness for the defendants under any view that can be taken of the question.

In regard to the exceptions taken to the admission of evidence, it is difficult, if not impossible, to conceive even any plausible grounds for taking them. All the evidence admitted by the court in opposition to the objections of the plaintiff’s counsel tended to prove and establish the facts upon which the defendants relied for their defence against the plaintiff’s claim. First, for instance, to show that those under whom the defendants claimed had originally a good title to lot No. 38; secondly, to show that a mutual mistake had arisen between them and the former owner of the lot No. 39, by which the position or location of these lots became transposed in the opinions of their respective owners; thirdly, that valuable improvements had been made by the owner of lot No. 38, under this mistake, upon lot No. 39; and fourthly, that the plaintiff, as the agent of the then owner of lot No. 38, who under the mistake mentioned had made the improvements on lot No. 39, had practised a fraud upon him whereby he was prevented from reimbursing himself the cost of the improvements made on lot No. 38 by buying No. 39 from its then owner, Henry Pratt, on the same terms that the plaintiff did. We are therefore decidedly of the opinion that the evidence objected to was all properly admitted.

The only remaining error is an exception to the answer given by the court to the sixth point submitted by the defendants’ coun'sel. By this point the court was requested to charge the jury that “ if they believed from the evidence that the plaintiff, Reid, was applied to by Buck to examine into the state of the title for him, and undertook the office, he (Reid) stood in the situation of attorney or confidential agent for Buck; and as such was disabled, by the rules of law from becoming the purchaser of the property for himself; and that his purchase was void as against Buck and all claiming under him.” To which the court answered : “ If Reid was applied to as an agent by Buck to investigate the title to lot No. 38, and accepted the office and assumed the duty of making such investigation for Buck, he could not legitimately use the information acquired in so doing, to the injury of Buck. If the title to No. 39 was found by him to be complicated with that of No. 38, he could not become a purchaser of either to the prejudice of Buck.” In this answer of the court we can perceive no error. If the mistake in regard to the location of the lots Nos. 38 and 39 was discovered by Reid in the discharge of his duty to Buck as his agent, it was.clearly his duty to have advised Buck immediately of it, as it was a matter of the first importance to the interest of the latter that he should be so advised. It might have enabled him to have had the mistake corrected with Mr Pratt in such a way that he could not have been the loser by it, or he might have purchased of Mr Pratt on the like terms that the plaintiff did, and thus have saved himself from loss. But the plaintiff, instead of informing Buck of the mistake, concealed it from him, and, as it would appear from the finding of the jury, without delay became the purchaser of lot No. 39 himself, as an unimproved lot, for an unimproved price; and now wishes to obtain it, with all the improvements put upon it by Buck, from those to whom Buck sold for a valuable consideration. No one can doubt that it would be a fraud of the grossest kind to permit him to do so, without reimbursing them the money or price paid for the improvements. This, however, he has never offered to do. Neither do we wish to be understood as giving an opinion that he would be entitled to recover the lot by doing so, unless the defendants, upon being informed by him of the amount of the monies paid by him for and on account of it, should refuse to reimburse him. This they are bound in equity to do, if they wish to hold the lot under his purchase of it. If he had brought this action after making known the amount paid by him on account of the lot, and payment thereof had been refused by the defendants, he doubtless would have been entitled to recover in it; or if on the trial he had made known the amount and given satisfactory evidence of its having been paid by him, I do not see but the jury might have given a verdict in his favour, to be released upon the defendants’ paying the same with the costs of suit within a reasonable time to be mentioned by them in their verdict; or if the defendants had thereupon offered to pay the amount without time, that the plaintiff would have been bound to have taken it without costs, as he had never made it known before or offered to accept of it. But in regard to this matter of costs, it is unnecessary to give any definite opinion of the court, as no question of the,kind was raised on the trial of the cause.

Judgment affirmed.