
    Jackson ex dem. Youngs and others against Vredenburgh.
    In an action of tenanttis a com-he is'eab: ed to prove a Interest™151 The deed of $> possession hepledudethe grantor from “ti“feet” ment to recover possession of the same premises. Evidence of the declarations of one, who has given a deed with warranty, cannot be received to support a title deduced from suck person, though such declarations he made in articulo mortis g hut such declarations may he received in evidence to show in what character, or with what intent such pegos held possession of the land.
    THIS was an action of ejectment for a lot of ground and dwelling-house in the city of New-York.. The cause was tried at the New-York sittings the '27th April, 1804, before Mr. Justice Kent,
    
    On the trial the plaintiff proved, that David Youngs, a mariner, was in his life time seized of the premises in question, and died (at sea) so seized of the same about the year 1768 ; that he left a widow, and an only son who died the 28th June, 1774, scarcely eight years old ; that Christopher Youngs was the eldest brother of David, and died in 1798, leaving the lessors of the plaintiff (or those under whom they claim) his heirs at law.
    The defendant then read in evidence, a deed dated the 20th January, 1798, by which the said Christopher Youngs conveyed to Joseph Corre in fee, the lot in question, for the sum of one thousand dollars.
    
      To rebut this evidence, the plaintiff offered Joseph Corre as a witness to prove, that at the time he received the said deed, he was a tenant of the premises under the defendant, who held adversely to the lessors of the plaintiff. It was objected that he was an incompetent witness, being still a tenant under Vredenburgh, and that the testimony he was called upon to give was also inadmissible. Both objections were overruled, and the witness proved his tenancy under Vredenburgh, which the judge declared, rendered the deed a nullity.
    A deed of the same premises was then produced by the defendant, made to him by Benjamin S* Rowe and his wife, for the consideration of one thousand dollars, dated the,2d May, 1793, and another dee.d from Sarah Funder son, formerly the wife of David Youngs, to the said Rovoe, dated the 15th February, 1792, for die consideration of ten shillings, which contained no other covenant or warranty than the following; “ and the said Sarah Funder son doth warrant and defend the said premises to the said Benjamin S. Rowe his heirs and assigns forever,”
    The defendant then attempted to prove that the premises in question, were devised by the said David Youngs to his wife, afterwards Mrs, Funder son, by a will which was lost. Several witnesses testified as to the conduct of Sarah, who had always acted as owner of the premises, had received the rents to the time of her death; and "that during the American war, her house was broken open and plundered by a party of armed men, who carried away her papers which they took from a desk, but whether any will was contained among them, or what became of the papers afterwards, did not appear. She had in 1790, offered to sell the lot to one of the witnesses, and she died in 1797. Some conversations were also proved between Christopher Youngs and Sarah, tending to show that he considered the premises as her property, and that they formerly belonged to her grandfather.
    It was admitted that Sarah and those claiming under her had been in possession, and received the rents and profits of the premises in question ever since the death of David Youngs* The present action was commenced the 28th September, 1801.
    As further evidence oí the existence and loss of the will of David Youngs, the defendant offered a witness to prove the declarations of the said Sarah, “ who at divers times in her last illness while in the perfect possession of her mind mid memory, and especially a few hours before her death, had declared that her husband left a will, by which he gave her the premises in question; which will was taken from her when her house was plundered ; that in the last instance,, she made-her declaration on the faith of a dying woman, and the witness and others being present, she charged him and them to attest her words in court if occasion should offer: that immediately after the death of her husband, and always during her life, she bad made declarations to the same effect, and, particularly, at the time her house was plundered, she complained most of the loss of her husband’s will.”
    This testimony was rejected by the judge, as inadmissible.
    In his charge to the jury, the judge stated his opinion, that the evidence did not warrant the inference that the said Sarah during the life of her son, held the premises in her own right, or adversely to him, or otherwise than as guardian in socage, or dowager s that the entry of the lessors of the plaintiff was not barred by the statute of limitations; that the existence of a deed or wiE might be presumed ; but that in the present case, he did not think there was sufficient evidence to warrant that presumption; and that the deed from Christopher Youngs to Corre, was a nuUity.
    The jury found a verdict for the plaintiff, which the de-= fendant moved to set aside, as against evidence, and for the misdirection of the judge. The grounds for the application for a new trial, were,
    1. That Corre was not an admissible witness; or if admitted, he ought not to have been permitted to prove his own adverse possession. _
    
      
      Si That the deed for Corre was valid, and effectual to defeat the present action.
    3. That the evidence of Sarah’s declarations ought to have been received in evidence.
    4. That there was sufficient evidence to show that Sarah during the life of her son, held as owner and adversely to him.
    5. That the entry of the lessors of the plaintiff was barred by the statute of limitations.
    6. That it should have been left to the jury to presume a will, and
    
      7. That it appeared that the premises were the property of an ancestor of Sarah, and it did not appear that David Youngs had acquired a title to them.
    The motion for a new trial was argued in November term last, by Sanford and Hoffman, for the lessors of the plaintiff, and by Riggs and Hopkins for the defendant.
   Tompkins, J.

now delivered the opinion of the court» The first point re†lied upon in support of the motion for a new trial is, that Joseph Corre, the tenant in possession of the premises in dispute, was’ improperly admitted as a witness. He was offered on the part of the plaintiff for the purpose of proving that when the witness accepted a deed of th'e premises from Christopher Youngs, he was in possession as tenant to the defendant. To give validity to this objection, it ought to appear, that the interest of the witness was against the defendant. For the reason of the rule of evidence which deprives the landlord of the benefit of the tenant’s testimony is, that the tenant cannot be permitted by his evidence to support his own possession. (Cowper 622. 1 Strange 632. Woodfall 492. ) That reason does not apply in this case, for the interest of the witness was against the party calling him. A person interested in a cause, is an objectionable witness only when he comes to prove a fact consistent with his interest; but if he be called to give evidence contrary to that interest, he is the best possible witness, and no objection can be made tq him by a party* >:q the cause» Rea. Ev. 112,

The case of Brinckerhoff ads. Jackson ex dem. Jones and others, (April term, 1802) in. this court, has disposed of the second point. It was there determined, that the deed of a person out of possession being void, did not preclude the grantor from maintaining an action of ejectment to recover possession of the same premises.

Another ground for a new trial is, that certain testimony offered by the defendant, ^ad which ought to have been admitted, was overruled by the judge. This evidence was relative to the declarations of Sarah Punderson.

This testimony, though not immediately preceded by a declaration of the purpose for which it was intended, must be deemed from the whole case, to have been oiLred to prove the existence of a will, or to lay the foundation for the jury to presume a will.

Apart from the declarations of Mrs. Punderson, there appears no evidence upon which to found such a presumption. Those declarations are not, in my opinion, admissible for that purpose, because Mrs. Punderson, if Ev’ng, could not have been a witness to prove that fact, as she had given a warranty deed of the premises,- and consequently was interested to support a title deduced from her. It will not therefore be necessary now to determine whether under any, and what circumstances, the declarations of a competent witness in articulo mortis, can be introduced as legal evidence in a civil case.

But for another purpose, the declarations of Mrs. Punderson were clearly evidence, namely, to show in what character, or with what intent she entered, and held possession of the premises in dispute. The plaintiffs contended, and the judge, in his charge to the jury, adopted the opinion, that the mother ought to be presumed to have entered and held as guardian in socage to her son. Such ought undoubtedly to be the inference where the entry end perception of rents are unaccompanied with acts or deckrations inconsistent with that character. In' the case of Newman v. Newman, 3 Wil. 516, it is repeatedly mentioned, that the entry of the mother and the perception of the rents was not atten<led with any declarations or acts to evince with w^at intention, or by what right or authority, or in what character she took possession. It was, therefore, perfectly reasonable in that case to presume the entry as guardian in socage, which was the only character in which the mother could rightfully enter, rather than presume a wrong, or disseisin by her. The facts in the present case, however, are widely different. Here Mrs. Punderson leased the whole as her own, and without describing herself as guardian, received and applied the whole rents, offered to sell and did sell as her oxvn, and, uniformly, during her life declared the premises xvere her own, and traced her title to a will of her husband, which she alleged to have existed. These facts distinguish the case from that of Newman v. Newman,

If she held adversely to her son, an important question upon the statute of limitations would arise. But if she held as guardian in socage, the statute does not bar the plaintiff, for the proviso with respect to the limitation to ten years, applies only to cases where the infant does not die seised. Whether the xvidow in this case held adversely, or as guardian in socage, is a question of fact for the decision of a jury ; and for the more satisfactory determination of that question upon the evidence which xvas excluded upon the former trial, in addition to that upon xvhich the verdict already given was founded, I think a new trial ought to be awarded. But as the judge was correct in overruling the testimony as improper to establish the existence of a will, and as it was not contended by the defendant’s counsel on the trial, that it ought to be admitted for the purpose for xvhich I have considered it as admissible, the rule is granted upon payment of costs by the defendant. .

New trial granted? ■ 
      
      
        Doe v. Williams.
      
     
      
      
        Bourne v. Turner.
      
     
      
       2d Edition.
     