Lawrence v. Fulton

Wheke in ejectment plaintiff claimed title under one Fairbanks, and on the trial, to lay a foundation for giving parol evidence of the contents of a deed from H. to Fairbanks, made an affidavit that he never had possession of the deed, and then introduced a witness who testified that he once had the deed in his possession, and at first thought Fairbanks had it now, but that he had received a letter from Fairbanks saying that he, the witness, had not returned it to him, and now the witness was satisfied that it was not in Fairbanks’ possession ; that he, witness, had searched among his own papers for the deed without success, and that he believed it was destroyed : Held, that the proof of loss was insufficient to authorize secondary evidence of the contents of the deed, because resting upon hearsay—that is, upon the mere letter from Fairbanks, the grantee, in whose possession the deed would properly be, and in whose possession the witness had thought it to be until he received said letter.

In this case the deposition of Fairbanks was offered in evidence by plaintiff, and contained this as the fourth interrogatory: “ Have you any conveyance for said premises from any one; if yes, from whom and where is said title deed 1” the answer to which was : “ Hatch made a deed to me of said premises in the early part of 1854, and I have the deed now in my possession : ” Held, that the rejection of this answer when offered in evidence by plaintiff, could not have been such a surprise upon him as on that ground to set aside the verdict against him; that the only benefit the testimony could have been to plaintiff was as proof of the contents of the deed, and that counsel could not have expected to read one part of this answer to prove the contents of a lost deed; when the other part proved the deed to be then in possession of the witness.

Held, further, that the rejection of this answer on defendant’s objection was not waived because not raised when the deposition was taken.

Depositions are subject to all legal exceptions at the trial, save only the objection to the form of an interrogatory where the parties attend the examination.

Held, further, that the charge of the Court, that, to enable plaintiff to recover, the jury must be satisfied that the person under whom he claimed “ had had an actual bona fide occupation, and had subjected the land to his will and control for some space of time—that mere assumption of title coupled with casual acts of ownership is not sufficient,” is not objectionable on the ground that the word “ occupation ” is more extensive than the word “possession,” and conveyed to the jury the idea that the party must have himself lived upon the premises; that the charges given, in connection with this, show that the word “ occupation” was used by the Court in the sense of “ possession,” “ subjection to will and control,” and there is nothing to indicate that the jury understood it differently.