Chadwick v. . Fonner, 69 N.Y. 404

Chadwick v. . Fonner

69 N.Y. 404 | NY | 1877

I entertain no doubt that the admissions of Locke while he held the title to the land, were competent *407 evidence against his heirs, and all persons claiming title under or through him. If he had been living and defendant in this action, they would have been competent against him. And whenever the admissions of one having or claiming title to real estate would thus be competent against him, they are competent against persons subsequently deriving title through or from him. (Jackson v. Bard, 4 J.R., 230; Pitts v. Wilder,1 N.Y., 525; Abeel v. Von Gelder, 36 id., 513; Vrooman v. King, 36 id., 477.) It matters not in this case that Locke had agreed to convey this land to Johnson before the declaration was made. The declarations are made competent by the fact that they were made while Locke held all the title which the defendants can claim, or which they obtained. The principle upon which such evidence is received is that the declarant was so situated that he probably knew the truth, and his interests were such that he would not have made the admissions to the prejudice of his title or possession unless they were true. The regard which one so situated would have to his own interest is considered sufficient security against falsehood. In some of the states of the union and in England the admissions of a prior owner of choses in action and other personal property characterizing or affecting his title are also admitted in evidence upon the same principle against those subsequently taking title from him. But in this state after some uncertainty as to the rule, it was finally settled in the case of Paige v. Cagwin, (7 Hill, 361), that such admissions in controversies about personal property are not admissible. But in controversies as to real estate, the rule remains in this state as above stated.

But I think the referee erred in the admission of certain evidence to which the defendants made objection. There was great controversy on the trial, as to whether Johnson agreed to pay $12 per acre for the land, or $30; and there was much evidence on both sides on the subject. On the part of the plaintiff several witnesses testified that they had heard Locke say that the price was $12 per acre, and on the part of the defendants, several witnesses testified that they had heard *408 Johnson say that it was $30 per acre. After most of this evidence had been given Johnson, who was then the plaintiff in the action, was asked, "Did you ever agree to pay $30 an acre for that land?" This was objected to on behalf of each of defendants on the ground that it called for a conversation or transaction between Johnson and Locke and was therefore inadmissible. The witness answered, "No." The question was clearly incompetent under section 399 of the Code. It directly involved a transaction with the deceased Locke. (Mattoon v. Young, 45 N.Y., 696.) It was not rendered competent by any evidence given by either of the defendants. They had simply testified to conversations with Johnson, and as to such conversations he was competent. But they did not testify to any transaction between Johnson and the deceased personally, and hence their evidence did not render him competent to speak as a witness of any such transaction. It cannot be said that this evidence was harmless. It may not have been deemed very important or influential by the referee, but as it bore upon a question much controverted, we cannot say that it did not influence the decision.

For this error the judgment must be reversed and a new trial granted, costs to abide event.

All concur, FOLGER and ANDREWS, J.J., absent.

Judgment reversed