Rucker v. Hamilton

• Decision Date: 22 April 1835
• Citation: Rucker v. Hamilton, 33 Ky. 36 (Ky. Ct. App. 1835)
• Court: Kentucky Court of Appeals
• Parties: Rucker <I>vs.</I> Hamilton.

33 Ky. 36

Rucker vs. Hamilton.

Court of Appeals of Kentucky.

April 22, 1835.

Mr. Owsley for Appellant: Mr. Combs for Appellee.

FROM THE CIRCUIT COURT FOR JESSAMINE COUNTY.

Chief Justice ROBERTSON delivered the Opinion of the Court.

JAMES HAMILTON, claiming in right of his wife — to whom, prior to their intermarriage, a tract of land and a slave named Dick and other slaves had been allotted for her dower in her former husband's estate — sued James P. Rucker, in detinue, for Dick, and, on the general issue, obtained a verdict and judgment.

Rucker resisted the action on two grounds: to-wit. First — that, in virtue of an alleged contract with Mrs. Hamilton, during her widowhood, he was entitled to Dick as long as she should live; and, second — that he had not been in the possession of Dick, or ever detained him.

The chief matter of controversy, and that respecting which nearly all the efforts of each party seem to have been made, was whether, by the contract between Mrs. Hamilton and Rucker, he was entitled to Dick during her life, as he attempted to prove, or only for a term of five years, as Hamilton, by his testimony, endeavored to show.

It appears from the concurrent evidence on both sides, that, at the time of Mrs. Hamilton's last marriage, Rucker claimed, under some unexplained contract, a tract of land and some slaves which had been allotted to her for her dower. That Hamilton, in 1824, after his marriage, being dissatisfied with Rucker's claim, procured a rescission of the agreement on which it was asserted, and the substitution of a new agreement, in writing, which transferred to Rucker the dower land and Dick; and that the memorial of this last contract was, only a few months after its date, destroyed by the consent of both parties.

There is some evidence tending to show, that, at the date of the contract for Dick and the land, one Amed Rucker held Dick, as a pledge for money which he had loaned to Mrs. Hamilton prior to her last marriage; and there is some testimony also tending to prove that James P. Rucker, when he made the contract of 1824 with Hamilton, undertook, with the approbation of Amed, to pay to him the amount for which Dick was pledged; that Amed continued to hold Dick, under James P. as a collateral security, and was in the possession of him at the commencement of this suit — which was after the expiration of five years from the date of the contract of 1824, and that, after the destruction of the written evidence of that contract, James P. Rucker had leased out the land for some years.

The following extract from the record of a suit between these parties, compromised in 1828, was also read to the jury on the trial: — "It is agreed, that the contracts "supposed to have been made between James P. "Rucker and James Hamilton, in which Hamilton was "to have let Rucker have the dower-negroes and other "property (except negro Dick and the dower-land,) in "consideration that said Rucker was to pay all the debts "of his (Hamilton's) wife &c. shall be considered null and "void upon the following terms" — "this arrangement "shall not affect the previous bargain about the dowerland "and Dick."

On the trial, the Circuit Court permitted the appellee to read to the jury so much of the record of an ejectment between the present parties, as contained the testimony of Samuel Blair, on the trial of the ejectment; and also permitted him to prove by a witness, that Blair, who was then dead, had testified in the action of ejectment for the dower land, substantially as the record, as read, represented.

The admissibility of that evidence is the first question presented for our consideration.

The appellant's counsel insists, that the evidence was inadmissible for two principal reasons: first — because the verdict in the action of ejectment would not have been admissible as evidence in this case; second — because, as he contends, the same matter was not involved in the issue in the ejectment, and in this case.

The only authority relied on in support of the first reason, is a dictum in Starkie — (1st vol. 266;) and that dictum is not sustained by the only reason assigned in support of it: which is, that the oath cannot be "given "in evidence without first giving the verdict in evidence; "for otherwise it would not appear that the oath "was more than a voluntary affidavit!" A palpable non sequitur is here announced, by Mr. Starkie, as a sufficient foundation and the only basis of an unreasonable doctrine. And cases referred to in the notes to the same page on which that announcement is made, show that it is sufficient that the postea be given in evidence, and also that, after a new trial has been granted, though the verdict would not be admissible evidence on the next trial, nevertheless, if a witness who testified on the former trial be dead, what he swore on that trial, may be proved.

All that is necessary to authorize such evidence, is, first — that the parties are the same; second — that the same matter is in issue; and third — that there was such a trial as authorized the administration of a binding oath. Mr. Starkie himself virtually admits that, as to the oath, it is only necessary to show, that it was not voluntary. Cannot that be shown without reading a verdict? We think it can.

But the second reason urged by the appellant's counsel, is more formidable. Yet, specious and imposing as it may seem to be, we are inclined to think that it is inconclusive.

The reason for the second requisite before suggested, that is, that "the issue shall be the same," is plain and irresistible. A party is not bound to disprove what a witness states out of the issue; he is not presumed to be prepared to repel it; it is not necessary that he should cross-examine respecting it, or that he should notice it at all, on the trial, or in a bill of exceptions.

The title to the land was the matter in issue in the ejectment, and the right to the slave was the chief matter involved in the issue in this case. These are certainly different things. But the contract of 1824, in virtue of which the appellant claimed the land, and seems to have claimed the slave, was material to the issue in each case. Blair's testimony applied altogether to that contract. And it seems that the chief matter in controversy on the trial on both issues, was, not what property the contract of 1824 embraced, but whether it entitled the appellant to hold that property for five years only, as the appellee contends, or during Mrs. Hamilton's life, as the appellant has endeavored to prove. As to that material and controverted question of fact then, the matter in issue in both suits was precisely the same; and therefore, had Blair testified only as to the period of enjoyment fixed by the contract, the admissibility of the proof of what he stated on the trial of the ejectment, could not be doubted.

But the isolated question, whether the contract embraced Dick as well as the land, and for the same term, was not material on the trial of the ejectment, and therefore it is contended, that the appellant could have had no motive for controverting or disproving, on that trial, what Blair said as to Dick; and consequently that what he stated respecting Dick, was not admissible as evidence in this case. The contract, however, being an entirety, Blair could not have proved or identified it without describing its terms and all its essential contents; and the object of his testimony was only to establish, and consequently identify, that contract.

But, admitting that what he stated respecting Dick was irrelevant to the issue to be tried on the action of ejectment, the necessary consequence of the concession would not be, that the Circuit Judge erred, to the appellant's prejudice, in permitting the proof of all that the deceased witness had sworn about the terms of the contract. For not only was it impossible to prove the contract, so as to make the proof available on...