Opinion
Argued May 9
Decided September 13, 1871
Amasa J. Parker, for the appellant.
W.H. Shankland, on the question of evidence.
Numerous exceptions were taken to the law as found by the referee and to the rulings at the trial upon the evidence introduced by the plaintiffs, but the exceptions urged in this court relate exclusively to the admission of evidence and alleged errors at the trial.
1st. It is insisted that the referee erred in proceeding with the trial after the substitution of Ira M. Moore as one of the plaintiffs, in the place of the original plaintiff, Charles Moore, deceased.
The Code provided, at the date of the trial, in 1863, section 121, that no action abated by the death of a party, if the cause of action survived or continued. The court were authorized, in case of death, on motion at any time within one year thereafter, to allow the action to be continued by or against his representative, or successor in interest. There is no objection urged to the regularity of the order reviving and continuing the action. The effect of the objection is that the change in the parties has taken away the power of the referee, and that the evidence which had been given was between other parties, and hence did not apply to, or bind the new plaintiff, and he having the right to object, the defendant must have the same right. The action was not referrible except by the consent of parties. A consent was, in fact, given, but the parties were not then the same as at the conclusion of the trial. It is difficult to perceive the sequence from these facts which the defendant claims. When the action is revived, the issue and proceedings are taken up at the point where death, marriage or other devolution of the party, as to whom the change is made, left them. The new or substituted party takes the place of the former one, and the case is revived and proceeds in all respects as if the new party had been in the case from the beginning. The pleadings remain the same, and all the prior proceedings are valid and operative. If any reason exists or has arisen for a change, it is incumbent upon the aggrieved party to apply to the court by motion, where, if the party is entitled to it, relief may be granted. The order of reference was not affected by the death or the substitution of the new party. If the defendant was able to show that there was any reason existing why the reference or the trial should not proceed, he should have moved the court in the usual form for relief. It was not in the power of the referee to grant any collateral relief pertaining to the practice which had been previously or was thereafter to be pursued. His duty was confined to hearing and deciding the action. His commission was contained in the order of reference. It was his business to pursue the directions of the order, unless he was relieved by some new direction emanating from the court. No good reason can be assigned why the proceedings of the trial, which had progressed nearly to a conclusion, were not continued where the action was revived, as well as the other proceedings. Clearly, if the defendant desired to be relieved he should have made his application to the court, upon affidavit showing the facts constituting the grounds for the relief demanded, and notice of his motion in the usual manner. The referee had no power to refuse to proceed, and correctly overruled the objection to proceeding with the trial before him. The notice of trial served by the defendant upon the plaintiff after the action was revived, was, I think, a waiver of the objection that the order of reference, as well as all other proceedings in the action, was not thereby revived.
2d. The principal question in the case was whether Frink held the premises by adverse possession, or as the tenant of Augustus C. and Charles Moore. His claim of such title was made under his own bond and mortgage to Mrs. Middlebrook, and the alleged sale of it by her to Frink. Evidence of his declarations, which tended to characterize his possession as a tenant of the Moores, was therefore admissible for that purpose. ( Pitts v. Wilder, 1 Coms. R., 525; Gibney v. Marchay, 34 N.Y., 301.)
For this reason the proceedings of Frink in bankruptcy, wherein he swore that he occupied the premises as tenant at will, were admissible. If the mortgage was valid and he was the owner of it, it passed under that proceeding to the general assignee in bankruptcy, and the subsequent assignment by Frink to the defendant in 1860 transferred no interest. On both grounds the bankruptcy proceedings were properly admitted.
3d. The correspondence between Pettit and Augustus C. Moore, having been written at the request of Frink and with his knowledge, was admissible as evidence for the plaintiffs, as well as his oral statements in regard to the ownership and his tenancy, to contradict evidence which he had given, in chief, as a witness for the defendant, that the Moores purchased from Pettit without his (Frink's) knowledge or consent, and that he had been in possession as owner until his conveyance to the defendant. This correspondence and the satisfaction piece were also admissible for another reason. They were contemporaneous with the negotiations for the purchase of the premises by the Moores, and constituted a part of the res gestæ, inasmuch as the evidence tended to prove that Frink was a party to that transaction. Charles Moore objected to becoming a purchaser unless the mortgage was removed. There was evidence tending to prove that Frink knew of this objection, and advised Mrs. Middlebrook to execute the satisfaction piece. It formed part of the transaction whereby the Moores became the purchasers, and Frink, instead of objecting to the satisfaction, advised and concurred in it. Honesty and fair dealing required that he should then inform the Moores that he owned the mortgage, and that Mrs. Middlebrook had no right to satisfy it. His omission of this important obligation forever estopped him, and his successors in interest, from claiming under the mortgage. The correspondence, and the evidence of Frink's participation, was material, not only as a contradiction of his evidence in chief, but also to establish him as an actor in the sale of the premises to the Moores.
4th. The letting of a part of the premises from Charles Moore to Anson Ellis, while Frink was occupying another part, but receiving no rent from Ellis, and making no claim to receive rent, and not objecting to the occupation of Ellis, was evidence tending in some degree also to characterize the occupation by Frink. It was otherwise wholly immaterial and harmless. It was not proven that Frink knew that Ellis paid rent to Moore; but it was proven that Moore proposed a division of the rooms to be occupied by Frink and Ellis, and that Frink made no objection to such interference by Moore. The lease by itself proved nothing material, and was wholly immaterial, but the evidence connected with the tenancy of Ellis was material and admissible. The lease did not prejudice the defendant.
5th. It was also objected that a deed of sixty acres of land from Charles Moore to Frink, in 1836, was improperly admitted in evidence.
It was admissible as bearing upon the evidence of Frink and upon the validity and consideration of the mortgage to Mrs. Middlebrook.
The deed to Frink reserved the use and occupation of the land to John Middlebrook and Abigail Middlebrook, his wife, during their lives, or the life of either of them.
Frink testified, as a witness for the defendant, that he agreed with Mrs. Middlebrook to support her during her life in consideration of her interest in that land, which he conveyed, within a few weeks after he acquired the title, to Oliver Andrews, without any reservation as to her life estate. He farther testified that becoming embarrassed with debts, and fearing that he should be unable by reason thereof to perform his agreement with Mrs. Middlebrook, he executed the mortgage for $1,437 to her upon the premises in dispute as a further security. This was the only consideration which the mortgage ever had. It further appeared from evidence on the part of the plaintiff that George Pettit insisted, after his purchase at the sheriff's sale, that the mortgage was without consideration, inasmuch as Mrs. Middlebrook had not executed any conveyance or release of her life estate in the said sixty-six acres of land; that Pettit and Frink had then submitted the question to Mr. Birdseye, a lawyer, as to the validity of the mortgage under the said facts; that he had advised or decided that she could not hold the mortgage and also her life estate in the land, and in substance that the mortgage was for that reason without consideration; that in view of this advice or decision of Mr. Birdseye, Frink had advised Mrs. Middlebrook to execute the satisfaction of the mortgage to the Moores, and that she had then acted on that advice, and the Moores had become the purchasers of the premises from Pettit, and the satisfaction piece of the mortgage had been executed and delivered.
It was received as a link in the chain of evidence tending to overcome the validity of the mortgage, and to contradict the statement of Frink that it had been given for the interest of Mrs. Middlebrook in the farm of land, or as security for any valid agreement on the part of Mr. Frink for her support.
It proved that she had a life estate in the farm, and, with the other evidence, that it had not been released by her. It tended to prove that the mortgage was without consideration and void, as against the judgment under which the Moores had obtained their title from George Pettit.
These were the only exceptions that were urged upon our attention by the counsel for the appellant. None of them appear to have been well taken; and the judgment appealed from should be affirmed, with costs.
All concur.
Judgment affirmed, with costs.