Turner v. Patterson

• Decision Date: 03 May 1837
• Citation: 35 Ky. 292
• Parties: Turner v. Patterson et al and e converso.
• Court: Kentucky Court of Appeals

35 Ky. 292

Turner v. Patterson et al and e converso.

Court of Appeals of Kentucky.

May 3, 1837

FROM THE CIRCUIT COURT FOR MADISON COUNTY.

Mr Breck for Patterson, & c.; Mr. Turner contra.

OPINION

ROBERTSON CHIEF JUSTICE

Statement of the case.

Doe, on the demise of eight persons claiming to be the surviving children of Catherine Patterson, deceased, having, in an action of ejectment, obtained a judgment against Thomas Turner, for eight-thirteenths of a tract of land containing about fifty acres--each party prosecutes a writ of error to reverse the judgment, and presents various questions for revision by this Court.

It appears from the bill of exceptions, that Jesse Patterson who held an obligation on one Mobberly, for a conveyance of the legal title to the tract of land which is the subject of controversy in this suit, sold the land to John Turner, his father-in-law, to whom Mobberly made a deed, in 1809; that Patterson and wife continuing to live on and enjoy the use of the land, with the permission of Turner, and without being charged with rent, he made the following disposition of it by his last will, admitted to record in January, 1813.

" Item--to my daughter, Catherine Patterson, I give her and her children, the fifty acres of land they now live on, to each an equal part; " that Patterson and wife still continued to occupy the land until sometime in the year 1815, when they sold and conveyed their interest therein to Thomas Turner the defendant in the court below, referring expressly to John Turner's Will as the source of their title; that, when the testator died, his daughter Catherine Patterson had seven children living, of whom two died in infancy during her life --that she had five more, of whom, also, two died whilst they were infants, and after her death, that she died in 1830, her husband and ten of her children surviving her; that Turner continued to occupy the land, claiming it as his own, from about the date of his purchase to the institution of this suit--a period of not quite twenty years; and that the eight now surviving children of Catherine Patterson are the lessors, together with Samuel Reid, who is described as the husband of one of them.

Upon this state of facts, the Circuit Court instructed the jury that, if the lessors had a right to recover, they were entitled to eight undivided thirteenths of the entire tract of land: to which instruction, both parties objected, and Turner also excepted.

That instruction presents the principal ground of controversy in this Court. But before we proceed to consider it, we will first dispose of some preliminary and minor points urged by Turner against the judgment.

That a dedimus is blank as to the county in which the depositions are to be taken, and also, as to the magistrate authorized to take them, is not an available objection to the depositions.

Though a deposition may contain some interrogatories rather leading, if it would be substantially the same without the answers to those interrogations a refusal to reject it, will not be good ground for a reversal.

First. Having objected, on the hearing in the Circuit Court, to the reading of some depositions which purported to have been taken in Missouri, he now insists that the Court erred in overruling his objections: which were, (1) that some of the interrogatories were leading; and (2) that the dedimus, under which they had been taken, was blank as to the county in which they were to be taken, and also as to the magistrate authorized to take them.

But we concur with the Circuit Court in the opinion that the objections were unsubstantial, and merely technical. The dedimus gave authority to any justice of the peace of the State of Missouri, and that was all-sufficient for every rational or practical purpose; and if any of the questions contained in any of the depositions were such as are called leading, they were but few and but slightly leading, if so at all; and had the answers to all such been expunged, the material facts would have remained in full force.

Second. Turner also complains that the Circuit Court refused to instruct the jury, that there could be no recovery on the demise of Reid and wife--because, as his counsel insists, there was no proof of Reid's intermarriage with one of the female lessors, or of the fact that the marriage was anterior to the date of the demise.

In ejectment on the demise of husband and wife, the title being in the wife, proof of the marriage is not essential.

Proof of declarations of co-lessors, made before suit brought or intended, may be sufficient evidence of the marriage of a member of their family.

Lis mota, as an objection to declarations, does not apply where the declarations were against the interest of the party making them.

This objection, also, is unsubstantial. If Reid had not intermarried with one of the lessors, the demise was not affected by the error of associating his name with that of a proper lessor who had title; and moreover, the evidence was sufficient in our opinion, to authorize the inference that Reid was the husband, and was married at the date of the demise. The declarations of members of the family of Jesse Patterson were, for that purpose, competent evidence; and those declarations being made by two of the co-lessors before the commencement of this suit, were not inadmissible on the...