McFadden v. Wallace
Before: Sawyer
Synopsis
Evidence—Cebtain Tests by which its Value may be Detebmined.—In support of a claim that a verbal lease had been entered into fifteen years before suit, upon which it was alleged that payments had been made, if no written evidence of such payment is claimed to have been given; if, at every payment of rent, some party, by mere chance, was present, and these parties were fomid, and produced as witnesses at the trial; if each of these parties should very particularly remember remarks made—the payment of rent—the amount paid—the kind of coin in which it was paid; if the sum paid amounts to moro than the sum due under the alleged lease; if these witnesses have never thought of the transactions from the time of their occurrence until called on tho stand—had never spoken to the plaintiff, or to his attorney, or to any human being about it—there are such intrinsic improbabilities inherent in the testimony, as to render it extremely unsatisfactory, when introduced to support a stale claim.
Evidence.—When the situation of a witness is such that he probably would have known, or heard of a fact, from the parties themselves, if it had existed, and had never heard of it, it affords some slight ground for the inference that the fact did not exist; and, under the condition of the evidence in this case, such testimony was admissible.
Idem.—Declarations of a party are always admissible against himself, or those claiming under him, by conveyance made subsequent to the making of the declarations, without reference to the time when, or place where they were made.
Idem.—In determining whether title ever vested under the Van ÍTess Ordinance, on a stale claim, all the acts and declarations, wherever made, are admissible against tho party claiming, for the purpose of ascertaining what he did really do to bring himself within the purview of the ordinance.
Jueob—Qualification of One who declares that he knows the defendants, and, if the testimony was evenly balanced, he would incline to their side, but would decide against them, if the testimony was against them, and that he would do Ms duty as a juror, under the instructions of the Court, is a competent juror.
Practice.—There is no error in permitting the purchasers of the defendant’s title at a Sheriff's sale to defend the action, if they rely wholly on defendants’ title, and do not deny Ms possession.
Sawyer, C. J., delivered the opinion of the Court : This is an action commenced on the 30th of December, 1864, to recover land of which defendant, Wallace, had been in the possession and occupation some fourteen years—he having entered upon the land in the fall of 1850, or spring of 1851, and erected buildings and commenced residing thereon as early as the spring of 1851. The plaintiff claims by prior possession, and under the Van Hess Ordinance, by virtue of such prior possession. He also claims that Wallace, after his entry, upon plaintiff’s claiming the land, ver[57]bally agreed to recognize his right, hold, as tenant of the plaintiff, for three years, at fifty dollars rent per annum, and paid rent accordingly; and that the possession of the defendant, therefore, for the purpose of vesting title under the Van Ness Ordinance, was the possession of plaintiff. The prior possession of plaintiff, and the tenancy, are denied. Defendant also insists, that if plaintiff ever had any right, by prior possession, it was lost by abandonment. The trial was had in 1866, and the testimony, as usual in such cases, is voluminous, and mostly oral.
We shall not discuss all the numerous points made, but only notice some that seem to be relied on with most confidence, and which will serve as examples of the whole. The plaintiff had given in evidence some acts claimed to be a recognition of a tenancy by defendant, and evidence of payment of rent on several different occasions. The lease, if any, was verbal. No receipt, or written evidence of any kind, is claimed to have ever been given to show payment of rent, and it curiously enough happened, that at every payment of rent for the three years claimed to have been made, some party, by mere chance, was present, and the parties so present were found and produced at the trial as witnesses from fourteen to fifteen years afterward; and although the circumstances were not remarkable, and there was nothing in particular calculated to impress them on the memory, each party very accurately remembered the important remarks made, the payment of rent, the amount paid, and the kind of coin in which it was paid; but the several payments made, when footed up, make an aggregate of considerably more than the amount of rent due under the agreement claimed to have been made between the parties. What is still more remarkable, is, that some of the witnesses upon the point had never thought of the circumstances from the time they transpired till they came on the witness stand; had never told plaintiff’s attorney about it; had never spoken to plaintiff about it; “never communicated with any human being on the subject, till now;” did not know how it happened that they were called as witnesses, yet were called to prove, were interrogated upon, and test
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