Leather v. Poultney

• Decision Date: 04 January 1812
• Parties: LEATHER v. POULTNEY administrator of POULTNEY.
• Court: Pennsylvania Supreme Court

4 Binn. 352

LEATHER v. POULTNEY administrator of POULTNEY.

Supreme Court of Pennsylvania.

January 4, 1812

In an action of covenant upon a special warranty, the covenantee in order to prove that he has been evicted by a person claiming by from or under the covenantor, may shew by parol evidence what was the testimony given upon the trial of the ejectment, which resulted in his eviction. He is not bound to call the witnesses, nor to produce the original documents.

If the covenantor had notice of the ejectment, and agreed to defend quæ re whether the evidence that the plaintiff claimed under him, is not conclusive upon him. If he had not it is prima facie only.

THIS was an action of covenant, tried before Yeates J. at a Nisi Prius in November last, when in consequence of his honour's opinion upon a point of evidence, the plaintiff suffered a nonsuit, which he now moved to take off.

The evidence reported was as follows: On the 13th May 1793, the defendant's intestate in consideration of 600 l. conveyed to the plaintiff a tract of land on Bald Eagle, with a special warranty against himself and his heirs, and all persons claiming by from or under him or them. An ejectment for this land was brought against Leather to August term 1794, by the lessee of Alexander Scott, who obtained a verdict in May 1801, and was put in possession of the land, by an habere facias. While the ejectment was pending Poultney who had full notice of it, wrote to Leather, " I must defend the action. I have consulted a lawyer here, and have given him a fee. He recommends removing it to the Supreme Court. The costs I expect to pay. You did right to employ a lawyer. If another is wanted you must employ one. I cannot attend myself." There was another letter from Poultney, saying he would pay only one lawyer, as he thought the land was easily obtained, and calling upon the defendant to pay up the interest and instalments of the purchase money.

After having given in evidence the record of Scott's ejectment, and these letters, the plaintiff called upon his honour Judge Yeates, before whom and Brackenridge J. the ejectment had been tried, to prove what had passed upon that trial, in order to shew that the recovery was had under a title derived from Poultney; but no evidence being offered of an exertion by Leather to obtain either the written documents or the witnesses produced upon the ejectment, his honour considered his own evidence inadmissible, and the plaintiff suffered a nonsuit.

B Tilghman and Tilghman for the plaintiff, contended that the evidence should have been received, 1st, upon general principles; 2dly, from the inconvenience of a contrary rule.

1. The issue in this cause was whether the intestate had defended Leather against all persons claiming under him; and from thence arose the sole question, whether the recovery which was admitted, was by a person claiming under Poultney. There could be no question whether the recovery was right or wrong, but solely whether there was such a recovery. This was a matter of fact to be proved in the manner we proposed, or by any competent witness who was present at the trial, and knew what took place; for whether the recovery was or was not under Poultney, depended on what was the evidence at the trial, and not on the truth of the evidence; and the witnesses themselves could give no better evidence of what they had said, than a stranger. Nay, if they should swear the contrary of what they had sworn before, it would not prove that the recovery was not by a person claiming under Poultney. The testimony upon the ejectment is in fact conclusive upon him. He had notice of the suit. He took defence, and acknowledged his liability for costs; and has acquiesced in the verdict and judgment, by never bringing or directing another ejectment. By the same principle that a recovery under such circumstances, is conclusive in the case of a general warranty, as this court decided in Bender v. Fromberger ^[a], so it is in the case of a special warrantee, provided the case is brought within the special covenant, which it is by shewing that Scott claimed, whether right or wrong, under Poultney. But if not conclusive, certainly it was prima facie evidence. Having lost the property in consequence of an asserted claim under him, the burden rested upon him to shew it was a false assertion.

2. The inconvenience of a contrary rule, would be very great. Scott has a right to the possession of his own papers, and cannot in a suit between strangers, be compelled to produce them. As to all that part of the case therefore which depended upon deeds and written testimony, we may be helpless; and yet why should we produce it, when the defendant had it in his power to challenge it upon the trial of the ejectment. The plaintiff in such a suit as this, is not bound to set out the title of the person who recovered against him. Wotton v. Hele ^[b]. It is sufficient to state generally that he claimed under the covenantor, and of this what took place at the trial is the best evidence. How in any case is that fact to be proved? Suppose the covenantor present at the trial, actually taking defence. Can he controvert the recovery, if it really took place under a title from him? Surely not. Then how is it to be proved except by parol evidence, that it did really take place under such a trial? The record in ejectment never sets out the plaintiff's title, and without this parol proof, there must be always two trials, with the same defence and evidence on each.

Shoemaker and Hopkinson contra. The question is altogether new, and must depend entirely upon general principles. We were not parties to Scott's suit, and therefore every thing occurring there was res inter alios acta. We agree that the question is whether Scott claimed under Poultney; but that is a fact to be proved, not by what certain persons said upon that trial, when they might have sworn falsely, but by what they will swear now in a suit where we have the benefit of a cross-examination. The case of a general warranty is different; for the covenantor being bound to warrant against every recovery, any record of eviction is prima facie sufficient. But in this case, though the very competency of the evidence depends upon there being a claim under Poultney, the evidence is offered to prove that very fact; or in other words, the evidence which should not be heard until the claim is proved, is admitted to prove the claim. This point of claim has not even been tried in Scott's ejectment. The issue there was, not under whom Scott claimed, but whether he had a good title; and he may have had a perfect right, without deriving it from Poultney. Nay, if evidence had been offered upon that trial, to shew that Scott did not claim under Poultney, it could not have been received, because it would have been wholly irrelevant to the issue then trying. The court are therefore asked, in the first place to hear ex parte evidence; in the next place to hear evidence in support of a fact, the proof of which is essential in the first instance to make the evidence competent; and finally to hear evidence as proof of a fact, to which according to the issue trying when the evidence was said to have been given, it was not competent for either party to give such evidence; or for one party to contradict it, after it had been given by the other. The issue in this cause is the fact of Poultney's claim. This jury are to decide it upon their oaths, not by an account of what was sworn by witnesses in another cause, but by what shall be said by witnesses who are sworn in the present cause.

TILGHMAN C. J.

Thomas Poultney sold a tract of land to the plaintiff, and conveyed it by deed containing a clause of warranty against himself, and all persons claiming under him. An ejectment was afterwards brought against the plaintiff by Alexander Scott. Thomas Poultney received notice of this ejectment and undertook to defend it. But as he lived at a considerable distance, he requested the plaintiff to attend to it. Scott recovered, and the plaintiff was turned out of possession by legal process. On the trial of this action, which was brought to recover damages for the breach of the warranty, the plaintiff having given the record of Scott's ejectment in evidence, offered to examine Judge Yeates before whom that ejectment was tried, to prove what was given in evidence on that trial, in order to shew that Scott claimed under Thomas Poultney. The testimony of Judge Yeates was overruled, on which the plaintiff suffered a nonsuit, which he now moves to have taken off, and a new trial granted, on the ground of the evidence having been improperly rejected.

It is agreed that the record of Scott's ejectment was legal evidence. It could be evidence on no other ground, than that it tended to prove the plaintiff's allegation, in the...