Hall v. Young

Hall v. Young.

The court will not, upon the motion of a party, order a witness summoned under a subpoena duces tecum, to produce the papers mentioned in the subpoena, until it appears, from his own admission or from other conclusive evidence, that he has them under his control; and it seems an order will not be made upon him in the alternative to produce them, or show cause why, until he has been asked whether he has them in his possession.

To render the statement made by a witness out of court admissible for the purpose of contradicting his testimony, it must conflict with some fact

• stated in it, or with its general drift. It is not sufficient that it consists merely in a comment upon the subject which indicates a general want of veracity.

Declarations, made at the time of delivering money to a married woman, by the person delivering it, in the nature of directions or suggestions as to its disposition, are evidence, as part of the res gestoe, upon the question whether the money was received by her as her husband’s, or her own.

The husband acquires by the marriage no right or title to the personal property owned by the wife at the time of the marriage, or accruing to her subsequently, whether it consist in specific chattels, money, or choses in action, except the marital right of reducing it to possession.

Deceiving the money of the wife for the purpose of paying it away on her account, and thus paying it over, does not constitute a reduction to possession.

The husband acquires no interest which can be seized by his creditors, in land purchased in good faith by the wife, and conveyed to a third person for her use, although the husband applies the proceeds of wood and timber, cut by him from the land, in part payment of the consideration for the purchase.

"Where the consideration for the purchase of land conveyed to a third person is paid in part with the money of the husband, and in part with that of the wife, not reduced to possession by the husband, the conveyance inures to the use of the husband and wife respectively, in proportion to the amount so paid by them.

Nothing passes by the extent of an execution against the husband upon a parcel of the land so purchased, set off by metes and bounds, from the residue.

"Writ or Entry, for a tract of land in Chester, containing twelve acres. Plea, nul disseizin.

The plaintiff, to make out title, relied upon the levy of an execution upon the demanded premises, set off from a tract of about seventy acres, by metes and bounds, in severalty, as the estate of Simon Hazelton. Several exceptions were taken by the defendant to tbe levy, which, for the purposes of the trial, were overruled by the court, and which are unnecessary to be stated.

For the purpose of showing that said Simon had title to the land at the time of the levy, by virtue of an unrecorded deed, from his son Hezekiah, of the farm of seventy acres, of which the twelve acres were a part, the plaintiff introduced David Currier, who testified that prior to the levy he made out a deed from Hezekiah to Simon of the entire farm, witnessed, and took the acknowledgement of it, and that he thought the deed, at the time it was executed, was delivered into the possession of the grantee.

The farm, of which the twelve acres were a part, had previously been purchased of one Nathan Moore. The bargain for the same was made in October, 1847, when Moore executed and delivered to said Simon a bond to convey the farm to him at a future day, on certain conditions; and in April, 1848, about the time specified in the bond, the conditions being fulfilled to the satisfaction of Moore, he made a conveyance of the farm to Hezekiah, by direction of Simon. After said Currier had testified, said Simon was called by the plaintiff, but not sworn, and the plaintiff moved the court that he be ordered to produce the bond from said Moore, and the deed from said Hezekiah, he having been summoned under a duces tecum to bring them into court; and the court declined to make such order. The plaintiff' insisting upon his right to require the production of said papers, without swearing said Simon as a witness, and upon the understanding that he was not thereby to be considered as having waived his right, moved that Simon be sworn and inquired of in respect to his possession of the papers. He was thereupon sworn, and upon inquiry denied that he ever had the deed in his possession, or ever had control of it; and further testified, that he had never seen it since it was executed; and had been informed and believed that it had been destroyed before the commencement of this suit; and that he did not have the bond in his possession at the time of the serving of the subpoena duces tecum upon him, nor had he at any time since.

Said Hezekiah was introduced as a witness by the defendant, and testified that he and his father went to Currier’s together, for the purpose of having a deed of the premises made out from him to his father; but with the understanding that it was not to be delivered to the father until his wife, the mother of Hezekiah, had been consulted on the subject, and should consent to its being delivered; that the deed was retained by Hezekiah; was never delivered to his father, and was never in his possession, and that upon consulting with his mother he destroyed the deed.

The plaintiff, for the purpose of contradicting Hezeki'ah, offered to prove by Mary Hand, that subsequent to the time when he testified he destroyed the deed, he stated that he could tell that in three words which would turn the cause either way. He had been inquired of, on cross-examination, whether he had ever so stated, and he denied that he had. This testimony of Mary Hand was objected to, and ruled out.

It was contended by the plaintiff that, even if the deed from Hezekiah to Simon was not delivered, the title was in Simon at the time of the levy, because the purchase money of the land, at the time it was conveyed to Hezekiah, was paid by Simon, and the deed taken by Hezekiah for the use of Simon.

The defendant contended that the purchase money was paid by the wife of Simon out of funds which she held in her own right, and which had never been reduced to possession by her husband, and that the deed was taken to Hezekiah for the use of the wife.

The wife was introduced as a witness by the defendant, and testified that a portion of the money so paid for the purchase of the land was given to her by her brother, and that, upon his giving it to her, he said: “Take this, and buy a place for yourself, and don’t let Simon have it.”

To this evidence the plaintiff objected, and it was admitted by the court.

There was evidence tending to show that Simon received this money from his wife for the purpose of paying it over towards the purchase of the land, and that he carried the money and delivered it in part payment for the land.

The court instructed the jury that such taking and paying over the money by the husband did not constitute a reducing to possession, so as to make it the money of the husband, unless they found he had the intention to claim it as his own.

It appeared in evidence that a portion of the purchase money of the land was secured by the promissory notes of Hezekiah, and a mortgage back of the premises, and that these notes were subsequently paid in part with money arising from the sale of wood and timber cut by Simon from the premises, and in part with money arising from other sources; and there was conflicting evidence whether the other money belonged to the wife in her own right, which the husband had not reduced to possession, or whether it was the money of the husband. The court instructed the jury that if the money paid for the purchase of the land arising from other sources than the sale of the wood and timber, was the money of the wife in her own right, independent of the husband, and had never been reduced to possession by him, the husband would have no such interest in the land by reason of his cutting off and disposing of the wood and timber, and applying the proceeds in part payment for the land, as to give the creditor of Simon any right in the land under the levy; and that if a portion of the money arising from such other sources was the money of the husband, and the residue the money of the wife, not reduced to possession by the husband, the deed taken to Hezekiah would inure to the benefit of the husband and wife respectively, in proportion to the several amounts paid by them towards the purchase, and in that case nothing passed by the levy.

The jury returned a verdict for the defendant, and the plaintiff, having excepted to the foregoing rulings, refusals and instructions of the court, moves that the same be set aside.

J. S. Wells, for the plaintiff’.

1. A witness summoned to produce a paper will be compelled to do so without being sworn. 1 Stark. Ev. 161, note n; 1 Phil. Ev. 273-4, 2d Ed.; 3 ditto 1171; Roscoe’s Crim. Ev. 117, 128, 169; Perry v. Gibson, 1 Ad. & El. 48, (28 Eng. Com. L. 32;) Davis v. Dole, 4 Car. & Payne 335, (19 Com. L. 410;) Wood v. Connell, 2 Whart. 542, 562.

2. The plaintiff’s evidence tended to show that the bargain for the land was made by Simon; that a bond was given for a conveyance to him; that the conveyance was made to Hezekiah by his direction, and that he (Hezekiah) conveyed to his father on the same day that they received the title, and that the title so remained with the knowledge of the mother. If the jury had found this to be the state of the facts, it must have been decisive of the ease. Hezekiah met the evidence by an absolute denial. Ought not his declarations upon this subject to have been received? If he had said to Mrs. Rand: “Hall should recover,” and stated his reasons; or, “father has the deed”; or, “ mother has no claim, as father paid for the land,” or words to that effect, and then denied it on trial, can there be any doubt the contradiction should have been admitted ? He was bound by Ms oath to testify the whole truth. If he knew what would give the cause to the plaintiff, or defeat Ms mother’s claim, he was bound to state it. He stated to Mrs. Rand that he had' that knowledge, and on cross-examination denied that he so stated. If he did so state, it would clearly detract from his evidence in relation to the deed; and having that bearing the testimony of Mrs. Rand should have been admitted.

8. The declarations of the defendant, the brother of Mrs. Hazelton, were allowed to be proved, as tending to show that the farm was purchased by her. Suppose her brother did give her money, the character of that act was not in question, and the declarations accompanying the gift are only admissible as res gestee, when the character of the act is in question. The question here was, who purchased the farm ? and, upon that subject, the declarations of the defendant were admitted to characterize that transaction instead of the alleged gift. 1 Greenl. Ev. 120.

4. The ease finds that Simon bargained for the farm, took a bond for a deed, had the conveyance made to his son, paid over to the grantor the money for the land, part of which was from sale of wood and timber cut by Simon from the land, and part from other sources. The question of reducing to possession by the husband had no pertinency here; for if the defendant gave money to the wife of Hazelton, during coverture, it at once became the absolute property of the husband. Com. Dig. Bar. & Feme, E, 3; Bac. Ab.; Bar. & Feme, D, C, 3; Reeves Dom. Rel. 60, 63; Schuyler v. Hoyle, 5 Johns. Ch. 203. But if it were otherwise, the charge should have been in favor of the plaintiff, because Simon Hazelton had possession of the money. He carried and delivered it in part payment of the land. He did not profess to act for the wife, but had the conveyance made to the son. He might have received the money from his wife, intending to invest it for her, and afterward have changed Ms mind, and taken conveyance to himself or a trustee. That would he assuming control over the fund, and make it as clearly his as any other mode of reducing it to possession.

5. The defendant, being a stranger, and interested, has no right to raise the question as to tenancy in common between Hazelton and wife, nor can any one during the life of Simon do so. The levy was upon twelve of the seventy acres which constituted the farm. The court charged that when any portion of the purchase money belonged to the wife, it would constitute her a tenant in common, and defeat the levy. We think such a transaction should defeat any claim of the wife. She should not be permitted, by thus combining with an insolvent husband, to defeat a levy, when but a fraction of the consideration came from her. Commingling her funds in this manner with the husband’s should be held to be a surrender of the property to the husband.

Marston, for the defendant.

1. The court had no authority to order Simon Hazelton to produce the bond or deed. Non constat, that he had any such document to produce. The plaintiff did not choose to ask him, or to have him sworn as a witness. The court, therefore, had no more authority over him than any other citizen who was not a witness in the cause; and if he had been sworn and admitted he had them, no power could have compelled him to surrender or produce them on the demand of this plaintiff.

2. "Whether Hezekiah Hazelton did or did not say he could tell that in three words which would turn the cause either way, was immaterial. It was entirely in the discretion of the court to admit or exclude the proposed testimony of Mary Eand to that point.

S. The testimony of the wife of Simon as to what her brother told her to do with the money he gave her, was admissible as a part of the res gestee. It elucidated the act. It explained the purpose of the gift, and constituted the very fact which was the subject matter of inquiry. 1 Greenl. Ev. sec. 108. 1 Stark. Ev. 46; Sessions v. Little, 9 N. H. 271; Johnson v. Elliot, 26 N. H. (6 Foster) 67.

4. The separate property of the wife in whatever form it may exist is not liable to be taken in payment of the husband’s debts, until he has appropriated it to his own use, or in some way exercised dominion ovér it. The course of legislation in this State and a series of judicial decisions have firmly established the general proposition. And the husband may as well act as the trustee or agent of the wife in investing or disposing of his wife’s property as another, and if he do so without intending to exercise his marital right, no interest vests in him. Coffin v. Morrill, 22 N. H. (2 Foster) 352, and eases cited.

5. The property of the wife and the properly of the husband may be inserted in the same land chattel or chose in action, and if held by a third party for their use, the husband does not, thereby, against his will, become possessed of his wife’s estate. The husband’s interest maybe taken in the same way by his creditors that it might have been if invested with property of another not his wife. His undivided interest in land may be set off, but not the land itself, by metes and bounds.