Jackson, ex dem. Marvin and others, against S. Hotchkiss

Jackson, ex dem. Marvin and others, against S. Hotchkiss. ALBANY, Oct. 1826. Ejectment to recover part of military lot No. 44, in Homer, Cortland county, tried at the circuit in that county, January 25th, 1825, before Throop, C. Judge ; when the following facts appeared : The defendant came into possession of the premises in question, by agreement w’ith Daniel Hoar and Abner Hotch- , . , . j i j kiss, who took possession under a written and sealed contract to purshase of Anthony Marvin, who died in 1811; (and of whom the lessors of the plaintiff are the children and heirs at law.) This contract of purchase was dated October \9th, 1797, about which time the vendees took . possession. The last payment was to have been made m March, 1799. Two payments of part of the purchase money were endorsed on the contract; the last, of $60, as of February 14th, 1798. The present action was commenced in 1824. The vendees and the defendant had continued in possession of the premises in question from the time of the contract of purchase ; and made permanent and val-liable improvements'; and the defendant bad successfully defended several actions of ejectment for the same prem* ises. Where one under a cou. ‘° P“*‘ neglects to ^derationmo-ney, he and those claiming under him are title of the heirsT’though “ore than 20 years have elapsed from ment became the ’ Vend!e, ““d . those claiming under him, have nen^andTai-uable improvements, defended several actions of ejectment, and not been called on by *be vendor to pay ; and have even acquired title by conveyance from a third person. A delay of twenty years to demand the money, or bring a suit upon a contract under seal, will raise a presumption of payment; but this may be repelled by showing that the covenantee died after the money fell due, leaving the contract in the hands of his attorney, who did not deliver it to the administrators, or place it within their control, till a number of years after the covenantee’s death, it not appearing that they had any knowledge of the contract at the time of making out the inventory pf their intestate’s estate. 1⅞<3 defendant then offered in evidence a conveyance in fee of the premises in question, to himself from Henry I. Stewart, dated November Gth, 1806 ; a deed of the same premises from Henry Ennis to Stewart, dated July 29th, 1806, in which Ennis was described as the heir at law of David Ennis, a dead soldier, to whom lot 44 was patented ; and also the ballot book and dead soldier list, by which it appeared that the lot was patented to David Ennis. The whole of this evidence was objected to on two grounds; 1. that the defendant was concluded, having taken possession under the ancestor of the lessors ; 2. that the conveyance from Ennis to Stewart was void, the lot being then in the adverse possession of the defendant. The counsel for the plaintiff disclaimed producing the evidence offered for the purpose of setting up title against the lessors of the plaintiff or their ancestor, unless the jury should believe, under all the circumstances of the case, that the contract with the ancestor of the lessors had been rescinded. In this view, the judge admitted the evidence ; which was followed on the part of the defendant by evidence, (this also being objected to,) that the debt due to the ancestor of the lessors, on the contract of purchase, had not been inventoried by his administrators, in their inventory of his estate. This was met by the plaintiff with explanatory evidence, that the contract was, at the ancestor’s death, and long before and after, in the hands of his attorney : and the judge putting the cause to the jury, upon the question of fact, whether the contract of purchase had not been abandoned, rescinded, or in some way extinguished by the parties) the jury found for the defendant. S. Sherwood, for the plaintiff, now moved for a new trial, on the grounds, that the judge had admitted improper evidence ; and erred in submitting the question of abandonment to the jury. He cited Cowp. 214. J. A. Collier, contra, cited 1 John. Ch. Rep. 354, and the cases there cited; 1 Esp. Rep. 366; 3 John. Rep. 283, 230-1 ; 5 John. Ch. Rep. 188; 3 John. Cas. 60; 6 John. Ch. Rep. 168; 1 R. L. 304. [MAJORITY — Woodavorth, J.] Curia, per Woodavorth, J. The evidence introduced «t the trial, to show that the contract had been rescinded, ■was irrelevant and improper. The fact, that the defendant, in 1806, took a deed of the premises from Steioart, is no defence ; the defendant being estopped from setting up a title against Marvin, under whom he held. It was an act done, for aught that appears, without Marvin’s knowledge ; and neither he nor his heirs can be affected by it, in an action of ejectment against the present defendant. So also, the evidence that actions of ejectment had been commenced against the defendant, and successfully defended by him, was wholly immaterial. It is not pretended that Marvin ever had notice of those suits. If he had, the question of rescinding his contract had no connexion •with that proceeding. In judgment of law, there is no sufficient evidence to raise the question whether the contract was rescinded ; and, consequently, it should not have been submitted to the jury. More than twenty years had elapsed, between the time the last payment was to have been made, and the commencement of this action. Unexplained, I apprehend, the presumption of payment is made out. That presumption is, however, sufficiently repelled. Marvin died after the money became due. His papers relating to lot 44, appear to háve been in the possession of Mr. Sherwood, his attorney, from 1807 to 1821. This sufficiently explains the oihission of the contract in the inventory, filed by the administrators. At the time of making out the inventory, they probably had no knowledge that the contract existed. It is not urged that payment was ever made to Sherwood. On the case before us, the plaintiff Avas entitled to recover, The verdict must be set aside; and a new trial granted, with costs to abide the event. New trial granted.