Oct. 1818. JACKSON V. LAWSON. [ * 541 ] testified, that Peter Lawson, who died before the revolutionary NEW-YORK war, and before his father, William, leaving the defendant his heir at law, bought the farm of his father, and that after the death of Peter, William told the witness that he had sold the land to Peter, and since his death had got *back the deed. He also stated, that Peter died in possession. Another witness testified, that Peter bought the land of his father in the spring, and died about seed-time, the same year, in possession, and that his family continued in possession a year or two after his death. The deposition of Simeon Lawson, one of the sons of W. Lawson, taken under the act to perpetuate testimony, was also read on the part of the defendant, which corroborated the testimony of the other witness on the part of the defendant, and stated that the witness, during the life of Peter, had heard his father say, that he had sold the south half of his farm in Poughkeepsie to Peter, and had given him a deed. The defendant then gave in evidence the record of a recovery in an action of ejectment in this Court, for the land in question, wherein James Jackson, on the demise of John Lawson, the now defendant, was plaintiff, and Elizabeth Lawson, the widow of W. Lawson, and John Brower, were defendants, and which cause was tried on the 14th of June, 1797, before Morgan Lewis, Esq., then one of the justices of this Court, and judgment was signed the 4th of August, 1797. The defendant then offered to prove that the lessor of the plaintiff was present at the trial in that suit; that he was the agent of E. Lawson, in preparing the defence, conducting the trial, and examining and cross-examining the witnesses; and that Peter Dubois, who is since dead, was sworn as a witness at that trial, on the part of the then plaintiff, and testified, in the hearing and presence of the lessor in this suit, that he surveyed the premises in question on the 14th of February, 1769, at the request of P. Lawson, and his father, William, and drew a deed in fee simple from William to Peter, and a bond from Peter to William for the purchase money, and that William told the witness, some months afterwards, that he had conveyed the premises to his son, and was afraid that he would not be able to pay the residue of the consideration money. This testimony was objected to, and excluded by the judge. The jury found a verdict for the plaintiff, which the defendant now moved to set aside, for a new trial, on the grounds, 1. That the verdict was contrary to evidence; and, 2. That the judge had rejected proper testimony. *Oakley, for the defendant, contended, that the defendant, having shown a prior possession in his father, it was evidence of right, and ought to prevail against a subsequent possession of W. L., the elder, especially where a descent had been cast, as in this case. (Smith v. Lorillard, 10 Johns. Rep. 338–356.) Besides, there was sufficient evidence of a conveyance from W. L., the elder, to P. L., the father of the defendant. If there [* 542 ] Oct. 1318. JACKSON V. LAWSON. NEW-YORK, Could be any doubt on this point, that doubt would have been removed by the evidence offered of what Dubois, a witness since deceased, swore on a former trial of the action of ejectment against the widow of W. L. and J. B. The lessor of the plaintiff was present at that trial, and examined the witnesses. The admission of this species of evidence is a departure from the strict technical rules of law, and allowed from necessity. (Jackson v. Bailey, 2 Johns. Rep. 17. 20. Taylor v. Brown, T. Raym. 170.) In Calhoun's Lessee v. Dunning, (4 Dallas, 120.) it was objected that a record of an action of trespass, brought by the defendant against one Caruthers, could not be read in evidence, as it was not between the same parties; but the objection was overruled, on the ground that Caruthers was the person really interested as the owner of the land; and that Calhoun, the lessor, was a mere trustee for him. [* 543 ] A verdict for or against a lessee is evidence for or against him in reversion; and a verdict for him in remainder is evidence against a subsequent remainder man; for he claims by the same deed. (Pyke v. Crouch, 1 Ld. Raym. 730. Com. Dig. Eridence, A. 5. Nin. Abr. Evidence, T. b. pl. 4.) In the case before the Court, there is the same privity of interest. P. Ruggles, contra, contended, that if the defendant claimed under a conveyance from W. L., it was the same source of title as that of lessor of the plaintiff, and he could not defend on the ground of his prior possession, which could not be adverse. To admit the parol declarations of W. L., made 25 years ago, would be most dangerous, unless some account was given of the deed. (Jackson v. Shearman, 6 Johns. Rep. 19. 21.) Again; evidence of what a witness, since deceased, *swore at a former trial, is not admissible, unless in an action between the same parties. (Jackson, ex dem. Schuyler, v. Vedder, 6 Johns. Rep. 8. 14.) The only exception to this rule is the case of a remainder man. VAN NESS, J., delivered the opinion of the Court. The first question I shall consider is, whether the testimony given by Dubois, in the action of ejectment brought by the present defendant against the widow of William Lawson and Brower, and in which the then plaintiff had judgment in 1797, was properly rejected or not. By the will of William Lawson, he devised all his estate to his wife during her widowhood, with remainder to certain of his children and grandchildren, part of whose estate the now lessor of the plaintiff purchased in 1791. Both the widow of William Lawson, and the lessor of the plaintiff, thus claim under the same will; and I am inclined to think, that there is such a privity of estate between them, and the verdict. in that case was, for certain purposes, evidence (though not conclusive) in this. It was evidence, at least, to lay the foundation for admitting the testimony given by Dubois, more Oct. 1818. JACKSON V. LAWSON. especially as the lessor of the plaintiff, in point of fact, had no- NEW-YORK tice of, and defended the former ejectment; was present at the trial, and had an opportunity of cross-examining the witnesses, though I lay no particular stress on these latter facts. The estate devised to the widow during her widowhood, and the remainder over, constitute but one estate carved out of the same inheritance, created and subsisting together, the one in possession, the other in expectancy. An estate in remainder is a present interest, though to be enjoyed in future, and is capable of being aliened, devised, and otherwise disposed of, in the same manner as an estate in possession. The possession of the widow was, for certain purposes, the possession of the remainder men, and the entry of the present defendant, under the recovery in the ejectment, was a prejudice to those in remainder, for, in consequence of it, the estate in remainder has become a right in action only. The lessor of the plaintiff had an interest in defeating the recovery, and his right was so interwoven with that of the widow, that the evidence of *Dubois affected the one almost equally with the other. My attention was not called to this view of the subject at the trial; and the fact, that the present lessor of the plaintiff had purchased part of the estate in remainder before the trial in 1797, was overlooked; and the counsel for the defendant put the admissibility of the testimony offered, on the ground that the lessor of the plaintiff was the agent of the widow, and present at the trial. It was held, by Ch. J. Holt, "that if several estates in remainder be limited in a deed, and one of the remainder men obtains a verdict for him, in an action brought against him for the same land, that verdict may be given in evidence for the subsequent man remainder in action brought against him for the same land, though he does not claim any estate under the first remainder man, because they all claim under the same deed." Pike v. Crouch, (1 Lord Raym. 730.) If the verdict in the former ejectment was admissible on the trial of this suit, by reason that the tenant for life and the remainder men are privies in estate, it follows, that the evidence given in the first suit by a deceased witness, is also admissible. The rule is, that such evidence is proper, not only when the point in issue is the same in a subsequent suit between the same parties, but also for or against persons standing in the relation of privies in blood, privies in estate, or privies in law. On this ground, the defendant is entitled to a new trial; though, independently of this, I think a new trial ought to be granted on the other grounds taken in the argument, that the verdict is against the weight of evidence. The proof of a conveyance by William Lawson, in his lifetime, to his son Peter, is very clear and satisfactory. New trial granted, with costs to abide the event. END OF OCTOBER TERM. [* 544] VOL. XV. 54 425 *ADDENDA. [* 546] IN the case of Saltus v. The United Insurance Company, ante, p. 531, add, VAN NESS, J., dissented. In the case of Whitbeck v. Cook and Wife, ante, p. 483, the following opinion of Mr. Justice Van Ness should have followed that delivered by Mr. Justice Spencer, in which the three other judges concurred. VAN NESS, J. The questions presented for the decision of the Court on this case arise, 1st. Upon a demurrer to the fourth count in the declaration; 2d. Upon a case made at the trial of the issues taken on the first, second, and third breaches; and, 3d. Upon a motion in arrest of judgment. 1st. As to the demurrer. The fourth breach is assigned upon the covenant for quiet enjoyment, which is alleged to have been broken, by reason, that at the time of the execution of the deed, eleven acres, two roods, and twenty perches, parcel of the land conveyed, was, and for a long time before that time, and ever since, had been, a common and a public highway, agreeable to the laws and statutes of this state; and had been, for all the time aforesaid, used, occupied, and enjoyed, by the people of this state as such common and public highway, &c. The objection is, that this breach does not, in terms, or in substance, aver an eviction of the plaintiff, and it is insisted that no action can be maintained for a breach of this covenant, unless the declaration contains such an averment. This point has been so frequently decided in this Court, that it is no longer open to argument. "The covenant for quiet enjoyment," say the Court, in Cortz v. Carpenter, (5 Johns. Rep. 121.) "goes to the possession, and not to the title. It appears to be a technical rule, that nothing amounts to a breach of this covenant, but an actual eviction, or disturbance of the possession of the covenantee." The defendant, therefore, is entitled to judgment on the demurrer, and the contingent assessment of damages on this breach goes for nothing. 2d. As to the case, upon which the defendant makes three points: 1. That the wife is not bound by the covenants in the deed declared on, and that she may take advantage of this on the plea of non est factum, which is one of the pleas in this case; 2. The plaintiff having declared on a joint contract, and one of the defendants, (the wife,) not being liable on it, that he should have been nonsuited. 3. That the existence of such highway as is stated in the case, is not a breach of the covenants upon which the parties went to trial. 4. That the rule of damages adopted on the trial (admitting the existence of such road to be a breach of the covenants on which the parties went to trial) was not correct. ADDENDA to the case of WHITBECK V. Cook. The two first points involve the same inquiry, and may be considered together. Although, in general, it is true that, during coverture, the power of the wife to contract is suspended, so that she is disabled to bind herself by any agreement, yet it is equally true, that there are exceptions to this rule. When the husband and wife unite in a fine sur concessit, with a warranty, she is bound by the covenant, and an action may be maintained upon it against her. This was so decided, after great consideration, in the case of Wotton v. Hele, (2 Saund. 177, and which is also reported in several other books, 1 Mod. 290. 1 Lev. 301.) The facts were, that Hele and his wife levied a fine sur concessit, by which they granted certain lands to the plaintiff, Wotton, for 99 years, if he should live so long, with covenant of warranty. After the death of the husband, a suit was brought on this covenant against the wife, who survived him, and a verdict was found against her; and on a motion in arrest of judgment, one, among other questions made, was, whether the action of the covenant would lie upon the warranty, it appearing that the defendant at the time of the fine levied was a feme covert. In support of the motion, it was argued, that although femes covert may pass their right in lands by fine, because they are examined by a judge of *record, yet they [*51* ' cannot bind themselves in a personal security, by covenant; for that a feme covert cannot covenant to pay damages. The Court, however, decided, "that the action will lie against the defendant on her warranty in the fine, although she was covert of baron, and they did not make any scruple of it." In the report of the case in 1 Mod. Rep., it is stated, that "this point was agreed by the counsel on both sides, that covenant on this warranty would lie against her." It is not expressly stated in the report of the case; but enough is said to induce a belief, that the lands in fact were the lands of the husband. With respect to this case, it is to be observed, that the warranty was contained in a fine, which is one of the highest matters of record, "and for its worthiness, and the peace and quiet it brings," is termed finis, fructus, exitus, et effectus, legis. (Plow. 253. a.) It has grown, in England, to be the most common assurance or conveyance, and is the proper mode for a married woman to dispose of her land: it partakes of the solemnity, and has the same effect as a judgment, against which there can be no averment, while it remains unreversed or set aside; and it would seem that a power to warrant by a feme covert, who joins in a fine even of her husband's lands, is incident to that mode of alienation: at any rate, it appears to be settled, that |