Samuel Brown vs. Benjamin King & another. Hannah King vs. Samuel Brown, 5 Met. 173

Wilde, J. These cases, on trial, were submitted to the same jury, the same questions being raised in both cases, and depending substantially on the same evidence. The principal question was, whether one James Dyer, from whom the Kings have derived their title, had established a valid title by disseizin. On this question the evidence was contradictory, and the question now to be decided is, whether the ruling of the court and the instructions to the jury were correct, or in any respect erroneous.

The jury were instructed that the burden of proof was on the party setting up Dyer’s title, to prove that his possession was such as to show that it was adverse to the title of Brown, the legal owner ; and we think that no exception to this part of the charge to the jury can be sustained.

It has been argued, that as it was clearly proved that Dyer entered, and had the exclusive possession of the premises, for more than 20 years, taking all the profits to his own use, this was good presumptive evidence that his possession was adverse, and amounted to a disseizin ; and that a prima, facie title having been proved under Dyer, it was incumbent on the other party to rebut this presumptive evidence, and that thus the burden of proof was shifted.

We have no doubt that this was good presumptive evidence of title in Dyer by disseizin, if there were no other evidence ; but there was conflicting evidence on the question whether his possession was adverse or permissive. And the burden of proof was on the Kings, who set up his title, to prove that his possession was adverse, and not by the permission of Brown. Where a party grounds his title on an allegation, whether affirmative or negative, he must prove it. Presumptive evidence of title, although sufficient to make out a good prima facie case, does not necessarily change the burden of proof.

If on the whole evidence, the jury were in doubt whether the possession of Dyer was adverse or permissive, his title must fail. Sperry v. Wilcox, 1 Met. 267.

As to the evidence necessary to prove a disseizin, the jury were instructed “ that it must appear, that Dyer entered and held adversely, contrary to the will and intent, and adversely to the title, of the owner ; but that if he entered and held by the permission and with the consent of the owner, the entry and possession were not adverse.” It is objected, that to prove a disseizin it is not necessary to show that. the entry and possession were contrary to the will and intent of the owner. And it .must be admitted, that if this part of the instructions stood alone and unexplained, it would be liable to exception.

But the meaning is explained by the part of the instructions immediately following. Taking the whole sentence in connexion, the meaning, we think, is sufficiently clear. By the expression, “ contrary to the will and intent, and adversely to the title of the owner,” nothing more is to be understood, than that the entry and possession of Dyer must appear to have been without the consent and adversely to the title of the owner.

The material question for the jury to decide was, whether Dyer’s entry and possession were by the permission and with the consent of Brown the owner; and the instructions objected to must be understood as having reference to that question ; and thus understood, this part of the instructions is perfectly correct. Another exception is, that the case was not left to the jury sufficiently open. This exception is somewhat, indefinite ; but we find nothing in the instructions to support it in any respect.

The remarks made as to the inference which might be drawn from certain facts, if proved to the satisfaction of the jury, are not, we think, open to any valid exception. The jury were instructed “ that if Dyer paid, or agreed to pay rent for the use of the land, it was evidence that he was a tenant at will, and not a disseizor.” And undoubtedly such a payment or agreement would be evidence, and conclusive evidence, to that effect. So if Brown had been disseized by Dyer previous to 1835, his payment of rent would purge the disseizin.

And the conveyance by Dyer of his buildings, described as “ standing on the land of Brown,” was evidence, as restricted by the instructions, for the jury to consider ; although the deed was given after the attachment by Hannah King. Such an admission was equivalent to an entry on the land by Brown. Whether Brown had then the right to enter depended on the other evidence in the case. If he had no such right, this part of the instructions would be immaterial. The only remaining exception is to the ruling of the court admitting in evidence the deposition of Lysander Brown.

The first objection to the caption or certificate of the justices is, that it does not show that the deponent was sworn before his. examination. But we think it does appear with sufficient certainty, that the deponent was so sworn. The certificate is in the words of the statute— “ the deponent being sworn to testify the truth, the whole truth, and nothing but the truth, made oath to the truth of the foregoing deposition,” &c. By this we understand that the deponent was, before the examination, sworn to testify the truth, &c., and that after the deposition was written out, he made oath to the truth of it.

The second objection is, that the oath was to testify the truth, in the case then in hearing, when there was no case in hearing before the magistrates. I will not denominate this a captious exception, but it is rather hypercritical, and in our opinion is not supported by any sound and substantial reason. The third and last objection is, that it does not appear that the deposition was written by the deponent or by the justices, or either of them, or by any other person by their direction, or that 't was read to or by the deponent.

The certificate as to these particulars might have been more clear and explicit, and more in detail; hut it is' certified that the deposition was made and subscribed by the deponent. The meaning seems to be that the deposition was written either by the deponent himself, or by one of the justices, or by some other person by their direction ; and that it was read to or by the deponent. If it were not so written and read, it would seem that the justices could not certify of their own knowledge that the deposition was made by the deponent.

And we do not think this a strained construction of the certificate, considering the circumstances attending the taking of the deposition. One of the tenants’ counsel was present, and if the deposition was not taken according to the directions of the statute, it would have been undoubtedly proved. The most favorable construction, therefore, ought to be given to the certificate of the justices, in support of the regularity of their proceedings. In Reed v.

Boardman, 20 Pick. 444, it was decided that a deposition, taken under a commission, was rightly admitted, although it did not appear by the certificate of the commissioner that he had conformed, in all particulars, to the rule of court as to the manner of taking the deposition. It was presumed in that case, that the commissioner had conformed to the directions m the rule. A like presumption, and for stronger reasons, might be justified in the present case, whatever construction may be given to the justices’ certificate.

Every reasonable presumption ought to be made in favor of admitting in evidence a deposition to perpetuate the testimony of a witness ; especially where the counsel of the party objecting to the admission was present at the examination of the witness. And there is no reason to doubt that the deposition was fairly taken, and according to the directions of the statute-. The St. of 1797, c. 35, § 8, gives the form of a certificate of the caption of a deposition taken in perpetuam, which does not require the justices to certify by whom the deposition was written, although the same

section requires the deposition to be reduced to writing by one of the justices, or Dy the deponent in their presence. But this direction was not considered as a condition precedent, a compliance with which was to be shown by the caption. It was to be presumed to have been complied with, unless the contrary could be shown. And in this respect there is no reason for supposing that the legislature intended to make any alteration by the revised statutes. Judgment on the verdicts.