Chadwick v. Webber
3 Me. 141
| Me. | 1824
Weston J.

at the ensuing Jlugust term in Oxford, delivered the opinion of the Court, as follows.

By the general rule of law, hearsay evidence of a fact in controversy, is not admissible. To this rule there are certain well established exceptions ; as in questions of pedigree, custom, certain entries or writings, which fall within the principle of hearsay evidence, of a party charging himself, or restraining his own right thereby ; and declarations making part of the res gesta. So proof of the declarations of tenants in possession, as to the nature of their occupancy, and under whom they hold, when the seisin of the proprietor is in controversy, has been admitted. And generally declarations of persons not under oath, when received in evidence, are admitted as facts in themselves, from which presumptions may arise for or against the facts in question.

Upon an examination of the authorities, we do not find that the testimony rejected falls within any exception to the general rule, by which hearsay evidence is excluded. They were declarations of the ancestor, under whom both parties claim, unaccompanied by any act, of the disposition which he had made, or intended to make, of his estate.

The cases, cited by the counsel for the tenants, are all distinguishable from the case before us. Verplank & al. v. Sterry & al. was a case in chancery ; in which Jlrde.n, the party whose declarations were received in evidence, had given his answer *146under oath ; and the declarations had a tendency to disprove that answer. Ivat v. Finch, cited from Taunton, related to a personal chattel ; and does not accord with the opinion of Lord Ellenborough, who,tried the cause. In Bartlet v. Delprat 4 Mass. 702, and Clarke v. Waite, 12 Mass. 439, evidence of the declarations of the party was rejected ; nor is there to be found in these cases any dictum, warranting the admission of the testimony rejected in the trial of this cause. In Bridge v. Eggleston 14 Mass. 245, the deed, under which the tenant claimed, was impeached on the ground offraud. In the case, cited from 5 Johns. 412, Spencer J. says “ that the declarations of a party to a sale or transfer, going “to destroy and take away the vested rights of another, cannot, “ ex post facto, have that consequence, nor be regarded as evi- “ dence against the vendee or assignee.” But he does not state that such declarations would be evidence, if made before, or if made in affirmance of such sale or transfer. The declarations received in evidence in Doe v. Roe 1 Johns. Cas. 402, were those of a tenant, while in the possession and occupancy of the land in question, stating to whom the same belonged.

A delivery of a deed may be by acts, or by words; or by both. It may be delivered by the party, who made it ; or by any other person, by his appointment or authority.precedent, or assent subsequent. It may be made, either to the grantee, or to any other person authorized by him to receive it ; or to a stranger for his use and benefit. But if a man throws a writing on a table, and the party takes it, this does not amount to a delivery, unless it be found to have been put there, with intent to be delivered to the party. Com. Dig. Fait, (A. 4.) And, upon the same principle, if the maker of the deed avails himself of the hand of the party for whom it is made, merely to put the deed into a trunk, desk, or other place of deposit, within the control of the maker, and such purpose is indicated and made known at the time, there is no legal delivery ; no act being done, or. declaration made, expressive of an intention to deliver.

In Wheelright v. Wheelright 2 Mass. 447. Hatch v. Hatch 9 Mass. 307, and Ruggles v. Lawson 13 Johns. 285, cited by the counsel for the tenants, the actual delivery of the deeds to a third per*147son was proved; and whether originally delivered as deeds or escrows, they were under the peculiar circumstances of each of these eases, holden to be operative as deeds, from the first delivery. But the deeds in question in the present case, were never delivered to, or deposited with, a third person; nor does it appear that, during the life time of the grantor, they were ever, by his consent, placed within the control of the grantee.

We are of opinion, that the testimony rejected was not legally admissible; and that the jury were properly instructed at the trial. There must therefore be judgment on the verdict.