
    Baird v. Slaight et al.
    
    
      (Supreme Court, General Term, Fifth Department.
    
    December 30, 1889.)
    1. Evidence—Admissions of Ancestor.
    The declarations of an ancestor while in possession of land, as his heir alleges, under a paroi gift from the holder of the legal title, to the effect that the land is not his, and that he does not claim it, are admissible against the heir in an action by her against persons claiming under judgments against the holder of the legal title, seeking to establish her equitable title.
    2. Appeal—Review—Rejection of Evidence.
    When evidence is improperly excluded, and the party offering it is afterwards permitted to give similar evidence, to which the same objection as that on which the other was rejected would lie, without objection, it will be presumed that the objection was withdrawn, and that, if again offered, the evidence would have been admitted; and judgment will not be reversed for the error.
    Appeal from special term, Livingston county.
    Action by Corinne A. Baird against Alonzo T. Slaight and others to cause to be conveyed to her the legal title to land of which the defendant Willis Clark, Sr., was seised in fee. The plaintiff set up an equitable title in herself, and asked judgment that the defendant Clark execute a conveyance of the premises to herself, and for other relief. The plaintiff’s case is this: In 1849 the defendant Willis Clark was the owner of the premises in fee, and in that year, by paroi, gave the same to his son Willis Clark, Jr., as an advancement from his estate, and promised, and in good faith intended, to execute and deliver to him a deed therefor whenever requested to do so by his son. Willis Clark, Jr., went into possession of the premises as owner, and continued to possess, occupy, and cultivate the land as a farm, and made improvements thereon of considerable value, until the time of his death in 1887. He paid the taxes, built a barn thereon at a cost of $600, received all the crops and proceeds, and used the same as his own. His possession was open and notorious, and the lands were assessed to him, and he paid the taxes thereon. Willis Clark, Jr., died intestate, leaving him surviving the plaintiff, his only child and heir at law. The trial court found as a fact that after Willis Clark, Jr., went into possession, Willis, Sr., was never in possession of the premises, never exercised any control of the same, never received any of the pro-c eeds, and never made any claim to any right or interst in the same, as between him and his son,- but at all times treated Willis, Jr., as the time owner of the premises. In the year 1875, Willis Clark, Sr., borrowed of the defendant the Mutual Life Insurance Company $2,000, and to secure the repayment of the same executed and delivered to it a mortgage on the said premises, which was recorded in the Livingston county clerk’s office. The appellant Slaight, in the year 1885, recovered a judgment against Willis Clark, Sr., for the sum of $2,144, which was docketed in the Livingston county clerk’s office, which became an apparent lien upon the premises. That afterwards, and in 1886, an execution was issued upon the said judgment, and the premises were sold thereon, and the said Slaight became the purchaser, and, unless the premises were redeemed from the sale, would be entitled to a sheriff’s deed. That the appellant Brownell is also a judgment creditor of the said Willis, Sr., and his judgment is an apparent lien upon the premises. A judgment was entered declaring that the plaintiff was the owner of the lands in fee, and that the other judgments were not liens thereon. It was held by the trial court, and the judgment declared, that the mortgage given to the insurance company was a valid lien on the premises as against the plaintiff. Defendants appeal.
    Argued before Barker, P. J., and Dwight, J.
    
      Fred W. Noyes, for appellants. James Wood, for respondent.
   Barker, P. J.

Upon the facts as found by the trial court, the judgment is well supported, so far as it affects the rights and interests of the appellants. I am also of the opinion that the evidence fully sustains the findings of fact upon which the legal conclusion is based, that the plaintiff had an equitable title to the premises as against Clark, the judgment debtor, and that the judgments rendered against him in favor of the appellants were not liens on the premises.

The appellants make the point that the court ruled out as incompetent an item of evidence, which, if received, would have tended to prove that Willis, Jr., occupied the premises, with the consent of his father, without any understanding or agreement that the same was to be conveyed to him. It was a question in dispute on the trial, presented by the pleadings, whether Willis, Jr., entered into possession of the premises, and occupied the same, as a gift from his father, with the understanding that a deed was to be executed and delivered to him whenever demanded, or whether he occupied the premises, with' the consent of his father, without any arrangement or understanding that the title should be conveyed to him. This- controversy presented a question of fact which was determined in the plaintiff’s favor. The complaint alleges that the record title was in the father of Willis, Jr.; and the evidence showed that as late as in the year 1875 he asserted that he continued to be the owner by giving to the defendant the insurance company a mortgage thereon. There was some evidence produced by the appellants tending to show that after the bond and mortgage were executed Willis Clark, Jr., recognized the same as a valid lien on the premises, and the judgment has affirmed its validity as against the plaintiff, and she acquiesces in that determination, as she has not appealed .from any part of the decree.

The defendants called a witness who testified that he lived on lands adjoining the premises, and was well acquainted with Willis, Jr., and that he had a conversation with him, in the spring of 1887, relative to the construction of a division fence between the premises in question and those on which the witness resided, and offered to prove by him that, as a part of a conversation relative to repairing the fences upon the premises, Willis, Jr., said to him “that-he had no fences to build any more on that lot, and that he did not own it.” This was objected to by the plaintiff, and sustained. In my opinion, the evideuce was competent, as bearing on the question of the nature and character of the possession of Willis, Jr., the father of the plaintiff, under whom she claims title as his only heir at law. The question as presented is precisely the same as if her father had lived, and had brought an action against his own father to enforce the execution and delivery of a deed under the alleged paroi promise to convey the title to him. The rule of evidence on this subject is, whenever the admissions of one having or claiming title to real estate would be competent against him, they are competent against persons subsequently deriving title through or from him. The declarations of a party in possession are admissible in evidence against the party making them, or his privies in blood or estate. They are competent simply to prove the character of the possession, and nothing more. Chadwick v. Fonner, 69 N. Y. 404; Jackson v. Bard, 4 Johns. 230; Pitts v. Wilder, 1 N. Y. 625; Abeel v. Van Gelder, 36 N. Y. 613; Vrooman v. King, Id. 477; 1 Greenl. Ev. §§ 109, 110. Thus, the declaration of an ancestor that he held as tenant of a person named is admissible in an action brought by such person against the heir, or that the party in possession is holding under a contract of purchase, and that the title is in another, with whom he has a contract for a conveyance of the same. Evidence of this character is not inconsistent with another rule of evidence, that the paroi declarations or admissions of a party in possession cannot be given to attack or destroy the title; for that is a matter of record, and the statute o£ frauds nullifies the force of paroi evidence for that purpose. Gibney v. Marchay, 34 N. Y. 303; Jackson v. Shearman, 6 Johns. 19; Jackson v. Miller, 6 Cow. 751; Jackson v. Vosburgh, 7 Johns. 186. It was admitted by the plaintiff that the record title was in the defendant Willis Clark, Sr.; and the chief question in dispute was as to the nature and character of his possession, and that presented a question of fact which, by the law of evidence, could be proved by his declarations and admissions. The evidence offered and rejected related to that question.

After this offer of evidence was made and rejected, the defendant called other witnesses, and was permitted to prove by them, without objection on the part of the plaintiff, that her father, Willis Clark, Jr., stated to them, in substance, that he did not own the farm, and that if he had owned the farm he would have done many things towards improving the same; and that he did not build a house thereon because he did not own the farm; and that he did not have any real estate upon which he could give a security for a loan of money. This evidence is of the same class of evidence as that which was rejected, and bears upon the nature and character of the possession; and, as it was not objected to, we think it is fairly to be inferred that the plaintiff withdrew her objection to the offer of evidence, and, if the defendants had called the witness by whom they intended to prove their offer of evidence, he would have been permitted to testify without objection. And for this reason we think the exception we have been considering should not prevail, and a new trial be granted. Thelien of judgment creditors is subject to the equities of all third parties; and we are persuaded, after a careful consideration of this case, that justice does not demand a reversal of the judgment. Judgment affirmed, with costs.  