
    George W. Finton, Resp’t, v. James W. Eggleston, Surviving Adm’r, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 23, 1891.)
    
    1. Deed—Warranty—Limitation.
    Defendant’s intestate executed and delivered to plaintiff a deed of land. In an action brought against him for damages for cutting timber on said land, it was adjudged that another person had title and was entitled to possession of said land, and that intestate’s deed conveyed no title. This was reversed at general term, but affirmed by the court of appeals. Held, that a cause of ■ action for breach of covenant in the deed accrued when it was adjudicated that the deed conveyed no title, and that the statute of limitations did not begin to run until that time.
    2. Same—Damages—Notice to grantor to defend action.
    In such case the grantee is entitled to recover the value of the premises, but if he seeks to make his grantor liable for his costs and expenses in defending his title, he must show that he gave him timely notice of the action so that he might control it; a notice given after the action is pending in the court of appeals, is not sufficient for that purpose.
    3. Same—Evidence—Code Crv. Pro., § 829.
    On the reference of a disputed claim against an estate for such damages, the evidence to show service ef such notice was insufficient without the testimony of plaintiff to the effect that he prepared the notices and took them to the house of the’deceased, and came away without having them in his possession. Held, that such evidence related to a personal transaction with the deceased and was inadmissible under § 829 of the Code.
    Appeal from an. order confirming the report of a referee directing a judgment for the plaintiff in a proceeding under the statute to recover a claim against the estate of Eggleston, deceased; and from an order of the special term of the supreme court denying the defendant’s motion for a new trial upon a case and exceptions.
    
      Alvin J. Hughson, for app’lt; William S. Briggs, for resp’t.
   Lewis, J.

On the 8th day of February, 1867, Stephen Eggleston, the defendant’s testator, executed and delivered to the plaintiff, Finton, a full covenant deed of three parcels of land in the town of Barrington, Yates county. One of these parcels contained eight acres three roods and thirty-one rods, and is the lot about which this contention arises.

After the delivery of the deed the plaintiff entered upon the eight acre lot and cut and removed therefrom timber. One Samuel Thayer, claiming a life tenancy in the lot, commenced an action in a justice’s court for damages for cutting and removing the timber. Finton interposed a plea of title to the premises, and the action was thereupon transferred to the supreme court, was tried and resulted in a judgment qf this court against Finton adjudicating that Anna Maria Thayer was at the time of her death the owner in fee of the premises; that Samuel Thayer, as tenant by curtesy, was entitled to the possession thereof; and that the deed from Eggleston to Finton of the eight acres of land conveyed n’a title to Finton. An appeal was taken by Finton to the general term of the supreme court from said judgment, that court reversed the judgment of the trial court, and thereupon Thayer appealed to the court of appeals.

That court reversed the judgment of the general term and affirmed that of the trial court, thus establishing that the plaintiff’s grantor, Eggleston, did not have title to the eight acre lot and had no right to convey the same to the plaintiff, and judgment was recovered against the plaintiff for costs, which he paid, and thereupon presented to the defendant as executor, etc., a claim against the estate of Stephen Eggleston for the value of the eight acres of land and for the costs and expenses of the litigation paid by him. The claim being disputed by the executor, it was pursuant to statute referred. The issues thus made were duly brought to trial before the referee, who subsequently made his report, wherein he found in favor of the plaintiff for the value of the land, including interest, $1,184.40; costs of the action, $353.-54; costs and disbursements paid by Finton to his counsel, $356.34; making in all $1,894.28.

The special term upon motion confirmed the report and directed judgment for the plaintiff for the amount thus reported. A motion was thereupon made at special term upon a case and exceptions for a new trial. The motion was denied and Finton thereupon appealed to this court from the order confirming the report and from the order denying the motion for a new trial, and claims that the statute of limitations has run against the claim of the plaintiff, as more than twenty years expired after the delivery of the deed, and before the commencement of the action.

We think the special term correctly held that the cause of action accrued when it was adjudicated that the deed conveyed no title to the premises, and that the statute had not run against the claim.

The judgment was prima facie evidence that the covenants in the deed to Finton were broken without proof of notice to the testator Eggleston of the pendency of action against Finton. Taylor v. Barnes, 69 N. Y., 433.

The referee correctly decided that the plaintiff was entitled to recover the value of the land with interest.

It was incumbent upon the plaintiff, however, if he sought to make the defendant liable for his costs and expenses in his efforts to defend his title, to prove that a timely notice of the commencement and pendency of the action against him was given to his grantor, with a request to him to assume the defense thereof. The .appellant contends that the plaintiff failed to make proof of the service of such notice.

Evidence was given upon the trial of the admissions of the .grantor of notice to him of the pendency of the action of Thayer v. Finton. Without the evidence of Finton as to the service of the notices (which will be considered hereafter), the case was left in great doubt as to when the notice was served, at what stage of the litigation it was given, and also as to the purport of the notice.

The plaintiff, George W. Finton, was called as a witness in his own behalf and was permitted to give evidence that he caused to be prepared duplicate notices of Exhibits 7 and 8 printed in the case; they are formal notices to the deceased of the pendency of the action, and calling upon him to defend the same; that he went with the notices at the time they bear date to the residence of Stephen Eggleston, deceased, upon two occasions; first, with the duplicates of Exhibit 7, and afterwards with duplicates of Exhibit 8, and that on neither occasion did he bring away with him the duplicate of the exhibit This evidence of the plaintiff was objected to by the defendant on the ground that it. was not competent evidence under § 829 of the Code. The objection was overruled and the defendant duly excepted and the exhibits were offered and received in evidence.

The witness Fred. Crosby testified that he .accompanied Fin-ton to the residence of the deceased on the occasion of the service of the last notice, Exhibit 8, in August, 1884, and that Finton delivered to Eggleston a paper and stated to him that he was going to appeal the suit, and there was a notice for him ; that Finton’s counsel had advised him to appeal and he was going to do so. This witness had no knowledge of the contents of the paper served. The only evidence tending to prove the service of the first paper, Exhibit 7, was that given by the plaintiff.

To entitle the plaintiff to recover his costs and disbursements it was incumbent upon him to establish that his grantor had notice of the action brought against him and that he was requested to defend his title. This notice should have been served in time so that the grantor could have control of the action if he so desired. A notice served after the action was pending in the court of appeals was undoubtedly "too late. Eggleston was under no obligations to assume the defense of the action if he had not received notice of it till then.

The referee, in his twelfth and thirteenth findings of facts, finds that Exhibits 7 and 8 were served upon the deceased at the time they bear date, respectively, and to which findings the defendant duly excepted. Without the testimony of Finton these findings are unsupported hy the evidence in the case. The appellant contends that the evidence of Finton, as to the service of the notices, was improperly admitted, and it is quite apparent that he is right in this contention. ,

The action was against the executors of Eggleston. One of the executors before the trial of the action died. While Finton did not testify to the actual delivery of the notice to the deceased, he was permitted to testify as to the preparation of the notices, to his taking them to the house of the deceased, to his coming away from the house without having them in his possession and to the identity of the notices. The purpose and object of this evidence was to establish the service of the notices. This evidence, it must be held, related to a personal transaction or communication with the deceased. Without his evidence the testimony of the witness who accompanied him would he practically ineffectual to establish any material fact. He knew nothing as to the contents of the paper.

To hold that the testimony of Finton was competent would be to thwart and render ineffectual the object and purpose of § 829 of the Code.

Theffacts in the case of Gregory v. Fichtner, 14 N. Y. Supp., 891; 38 N. Y. State Rep., 192, are very similar to the case at bar. The court there held such evidence to be inadmissible.

It appears from the opinion of the justice at special term that the question of the competency of this evidence was not raised before him, but it appears from the case that the appellant duly excepted to the admission of the evidence, and can avail himself of' the point upon this ‘ appeal, notwithstanding his omission to present it at special term. Witherbee v. The Board of Supervisors, etc., 70 N. Y., 228; Mackay v. Lewis, 73 id., 382; Fenno v. Hannan, 2 N. Y. Supp., 474; 18 N. Y. State Rep., 659.

We think that because of the admission of this improper evidence the judgment and order appealed from should be reversed,, and a new trial granted before another referee to be appointed, with costs to abide the event of the action.

Dwight, P. J., and Macomber, J., concur.  