Kennedy v. Bogert 7 Serg. & Rawle 97

7 Serg. & Rawle 97

Kennedy against Bogert and others.

In Error.

Friday, June, 14.

ERROR to the Court of Common Pleas of Columbia COUnty. , , -

The defendant in ejectraent, cannot-give in evidonee, a re-cowl ofa suit person on*1"^ to one under ^aimsUnless s°™e, colour shewn in the pc‘D he land

Ejectment by John Kennedy, against Godfrey Bogert, John Faust, senior, ánd John Faust, junior. The plaintiff claimed under a patent granted the 8th August, 1781, to Elias Boudinot, who conveyed to Daniel Montgomery, who conveyed to John Linn, who conveyed to the plaintiff. After the plaintiff had gone through his evidence, the defendants alleged, that they claimed the land under a sale or it by the Sheriff, as the property of John Fenner, and proceeded to offer in evidence a paper purporting to be a copy of a record of the Court of Common Pleas of Northampton county, iñ a suit- in which James Taylor,• and others, administrators of James Taylor, were plaintiffs, and John Fenrier defendant, brought to August Term, 1802, The plaintiff Objected to this evidence, but the Court admitted it, and the plaintiff tendered a bill of exceptions. The jury found a verdict for the defen*98dants. There was an exception also taken to. the charge of the Court, which was afterwards relinquished, ,-

Bellas., for the plaintiff in error, now contended, that the record ought not to have been admitted in evidence. It was between'different parties, and' some title should have been previously shewn in .Fenner, ,A'deed cannot be given hi evidence- till some title be shewn in the grantor. 1 Binn. 1.90. 2 Serg & Rawle, 80. A purchaser at Sheriffs’ sale, stands on the same footing as-other purchasers. Little v. Delaney, 0 Birin. 266.

Greenough, contra..

The defendants had a right to shéw that they came into possession lawfully, before the plaintiff purchased : they intended to-follow it up,by proof,' that Linn and the plaintiff, knew of the purchase and did not forbid it. ,

The opinion of the Court was delivered by

Gibson J.

The record of -the judgment in the Common Pleas of Northampton county, was-not evidence, .without some colour of title being first shown in Fenner, as whose property the land was sold.- If a party may in every 'case begin at either end!of the -chain of his evidence, why might not the defendant have insisted on shewing the Sheriff’s deed in the first instance, without producing even the judgment ? He could not do so, because without the process.and authority of the law, the Sheriff- who has no pretence of property in himself, but is merely the instrument of the law in vesting the property of another, can pass nothing by his deed, and the Court are not compelled to go through the idle-ceremony of receiving- evidence which, by the very shewing of him who offers it, is irrelevant and inoperative. If instead of the compulsory cónveyance of the. law, the defendant had offered a deed directly from Fenner himself, it would have been impertinent until it were shewn the grantor had some right to convey. There may be cases where-the Court, for the.sake of cpnvenience, will exercise a discretionary power in the admission of particular parts of the evidence out of their proper order, provided there is at the same time an offer to supply whatever, may be necessarily .introductory; but that is only *99a relaxation of the rule for the sake of convenience and expedition, which the Court is not bound to admit in^ practice, and to warrant which, requires the special' circumstances to be shewn on the bill of exceptions ; otherwise it will be error. Here no circumstances appear to.justify a departure from the rule, and as the evidence; for.any thing that is shewn, was entirely Irrelevant, .it was error to adrriit it. • The exceptions to the charge intimated in the opening, have oh the suggestion of the Court, not been insisted op in the reply ; and indeed it would be impossible to sustain them: but the exception to the evidence is well founded, and the judgment must be reversed. .

Judgment reversed.

Kennedy v. Bogert
7 Serg. & Rawle 97

Case Details

Name
Kennedy v. Bogert
Decision Date
Jun 14, 1821
Citations

7 Serg. & Rawle 97

Jurisdiction
Pennsylvania
Court
Supreme Court of Pennsylvania

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