
    George Stillwell, Respondent, v. Francis W. Boyer and Others, Appellants, Impleaded with Others.
    
      Evidence ■—• testimony by a party to an action, to a conversation had between his predecessor in title and his adve?'sa/ry’s predecessor in title, where both ewe dead, inadmissible even though he tools no active pañi, in the conversation.
    
    The plaintiff, in an action of ejectment, is prohibited by section 829 of the Code of Civil. Procedure from, testifying to a conversation had between the person through whom he derived his title and a person under whom the defendants claim title (both persons being dead at the time of the trial), although he took no active part in the conversation, and had no interest in- the premises in question at the time it took place.
    Appeal by the defendants, Francis W. Boyer and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 2d day of November, 1896, upon the verdict of a jury, and also from an order bearing date the 27th day of October, 1896, and entered in said clerk’s office denying the defendants’ motion for a new trial.
    
      Alfred E. Mudge and James D. Bell, for the appellants.
    
      H. M. Gescheidt, for the respondent.
   Goodrich, P. J.:

This is an action in ejectment to recover possession of a parcel of land in Gravesend, which, as the plaintiff claims, formed part of a lot designated as “West Meadow Bank Lot No. 39.” The plaintiff alleged a record title to said lot No. 39, and it was conceded upon the trial that he was the sole owner in fee simple of that lot.

The defendants served separate answers, denying generally all the allegations- of the complaint. The answer of Boyer also alleged that he and the defendants Browning and their grantors, had been in adverse possession for more than twenty years. The defendants offered in evidence a deed from Christianna Harrison and William H. Harrison, her husband, to Henry Hohenstein, dated June 5,1888, conveying the adjacent lot known as “ West Meadow Bank Lot No. 38,” and also the deeds of previous grantors to Mrs. Harrison. The defendants also offered in evidence the will of Christianna Harrison. The record does not contain the will or any statement of its contents,, but it seems to have been assumed that William II. Harrison derived his title under the will. The defendants' also introduced in evidence a deed from William H. Harrison to Frank W. Boyer, who, wé assume, is the defendant Francis W. Boyer, to Aaron A. Browning and the defendant George A. Browning, dated January 7, 1891. It is also stated in the brief of the defendants Browning that the defendants derived their title through Mr. Harrison, and the action was tried upon this theory. ’ ■ .

The defendants claim that the premises in question are within the limits of lot No. 38, and a large part of the voluminous evidence relates to that question. Color is given to this claim of the defendants by reason of surveys which were offered in evidence, in respect to which it is only necessary to say that there was a controversy as to the location, the defendant Boyer alleging in his answer that he was in the actual occupation of the premises under title which, we must assume,- was derived through the deeds which he offered in evidence. It is evident that the title of the defendants, if any, was derived through Christianna Harrison, whose husband joined with her in the execution of.the above-mentioned deed, or through the husband-after the death of his wife, through the title derived under her will, or by an adverse possession extending over twenty years.

Upon the trial.of the action the plaintiff, being under examination as a witness in his own behalf, was interrogated as to a. conversation between Mr. Harrison and Hicholas Stillwell, the father of the plaintiff, through whom the plaintiff derived his title. Counsel for the defendants objected to such testimony on the sole ground that it was incompetent under section 829 of the Code of Civil Procedure, but the objection was overruled. Exception was taken and . the plaintiff testified to the conversation. Section 829 of the Code, so far as it relates to the exception in question, reads as follows: “ A party * * * shall not be examined as a witness in his own behalf or interest * * * against * * a person deriving ' his title or interest from, through or under a deceased person * * by assignment or otherwise, concerning a personal transaction or communication between the witness and the deceased person.”

We have no difficulty in finding that, although the plaintiff took no active part in the conversation, which was- wholly between his father and Harrison, the testimony comes within the inhibition of the statute.- Both Nicholas Stillwell and Harrison were dead. The plaintiff derived his title through his father, Nicholas Stillwell, one party to the conversation, and the defendants'claimed to derive their title through Harrison.

In Matter of Bernsee (141 N. Y. 389) Andrews, Ch. J., writing the opinion of the court, said: Christian D. Bernsee was, under our decisions, an incompetent witness to testify to any conversation or transaction in his presence at the time of the execution and publication of the will. He was one of the chief beneficiaries thereunder, and was directly interested in establishing due execution. What occurred at that time was a transaction between the testatrix and the witness, within the meaning of sec. 829 of the Code, although he took no actual part in the conversation and it was wholly between the testatrix and the attesting witnesses. If active participation in the conversation was necessary to exclude an interested witness, and. he should., as 'an observer, be permitted to testify to transactions in form between the deceased and third persons, although such transactions were in his interest, it would furnish an easy and convenient method in every case of evading the statute. The decisions have enforced the spirit of the statute by excluding such evidence, and have treated transactions between the deceased and third persons in the presence of interested parties as if. the witness actually participated therein.”

A similar view of the statute was taken by Mr. Justice Bradley in the case of Ditmars v. Sackett (92 Hun, 381, 384), where he said: It is now quite well settled that the personal transaction or communication between a witness having an interest in the result and a decedent, to which the inhibition applies, includes a transaction or communication of the decedent with another in the presence of the witness, on the subject to which his interest relates, although the latter takes nb actual part in i.t.”

We have not been assisted, by the counsel of the plaintiff respondent, except by the following statement, that the exceptions were not well taken for the reason that, in 1878 or 1879, the time the conversation took place, the plaintiff had no interest in the property, nor has he derived any title from Harrison; neither did Harrison derive any title from Nicholas Stillwell.” ■ We cannot see that-either of these suggestions contains any sufficient answer to the objection raised by the appellants.

To establish the adverse possession alleged in the answer, the defendants produced evidence tending to show that William H. Harrison was the Owner and: occupant of the premises in question. Evidence of this character was the assessment roll of the town of Gravesend, wherein William H. Harrison was named as owner. There was also a survey offered in evidence, headed, “ survey for William H. Harrison,” and the theory upon, which the action was tried was that William H. Harrison was the person from whom-the defendants derived title.

The court in its charge used the following language : The plaintiff also claims that Harrison, from whom the defendants claim, in his talk with Judge Stillwell (plaintiff’s father), recognized the right of Judge Stillwell to thé land now in dispute.” In the estimation of the learned court, therefore, the' testimony thus admitted was1 important and material to the issues of the trial, whether the defendants claimed to be in possession under Christianna Harrison or her ■ husband, or both, or by adverse possession. The court allowed the plaintiff to testify to a personal transaction or communication between himself and a deceased person through whom he derived his title as.against the defendants, and this constitutes reversible error.

We have not found it necessary to examine the other questions-brought qp by the record. The judgment must be reversed and a new trial -granted, costs to abide the event.

All concurred

Judgment and order reversed and new trial granted, costs to abide the event. • '  