Vrooman v. McKaig

Le Grand, C. J., delivered the opinion of this court. This is an action of indebitatus assumpsit. The appellant, who was the plaintiff in the court below, proved that an action of ejectment was pending in Allegany county court, between Elizabeth Vrooman, as plaintiff, and John Z. Vrooman, as defendant, to recover a house and lot in the town of Cumberland; that prior to the October term 1848 of said court John Z. Vrooman died, leaving his widow, the appellant, in possession of the premises, which she leased to Joseph Pelton, who occupied them and paid rent as such until 2nd April 1849. She also offered in evidence an agreement entered into 2nd April 1849, between the appellee, as attorney of Elizabeth Vrooman, Henry Fleury, and the appellant, by which it was agreed and understood, by and between the parties, that the appellant was to allow of the substitution of ⁴⁵³ Fleury, at an increased rent, for Pelton, as tenant of the premises, for one year; the rent, ($100,) to be paid to the appellee, and by him to be paid — to use the language of the agreement — “to the successful party in an ejectment suit now (then) pending in Allegany county court, for the said house and lot, between Elizabeth Vrooman, as lessee of the plaintiff, against John Z. Vrooman, deceased,” &c.

The appellant also gave in evidence the proceedings in the ejectment suit, by which it was shown, that by the leave of the court she appeared to the action, and that subsequently, by direction of the attorney of Elizabeth Vrooman, a judgment of nonpros, was rendered by the court. The occupancy of the premises by Fleury, and the payment of rent to appellee until the 1st day of April 1851, were also proved. To rebut this evidence the appellee offered to prove the property wms that of Elizabeth Vrooman, and that John Z. Vrooman, her son, took possession of it as such, and being so possessed at the time of his death, his widow, the appellant, continued to hold and exercise control over it. To the admissibility of this testimony the appellant objected, but the court overruled the objection.

It is the admission of this testimony which constitutes the first exception. We are of opinion the court erred in allowing this testimony to go to the jury, and also in granting both of