Downs v. Lyman

3 N.H. 486 | Superior Court of New Hampshire | 1826

Richardson, C. J.

It seems to be well settled, that the declarations of a person in possession of land, ns to the nature of his possession, are evidence, not only against him, but against all persons claiming under him. 10 John. 377, Jackson vs M'Call.—4 ditto 230, Jackson vs. Bard.—2 D. & E. 53, Davis vs. Pierce.—1 Esp. N. P. C. 458, Walker vs. Broodstock.—1 John. 339, Waring vs. Warren.—Phill. Ev. 73.-5 B. & A. 223, Doe vs. Pettell.—1 Campb. 367.-4 Taunt. 14, Peaceable vs. Watson.

But this rule does not apply in the case now before us. For here neither party claims the land under those, whose declarations were admitted in evidence.

Nor can this case be governed by the rule, that in a civil suit against several persons, who are proved to have a joint interest in the decision, a declaration made by one of those persons, concerning a material fact within his knowledge, is evidence against him, and all, who are parties with him to the suit. 18 John. 330, Jackson vs. M'Vey et al.—17 ditto 335, Brandt vs. Klein.—11 East 588. For those, whose declarations were admitted in evidence, were not parties to this suit.

The declarations of deceased persons are admissible in evidence, where they appear to have been made against their interest. Phill. Ev. 191—193.—2 Pick. 536. But, in this case, it does not appear, that the persons, whose defc-larations were admitted, were dead.

But there is another ground, on which, we think, the evidence was admissible.

The proprietors of Rochester, in 1763, granted to Samuel Ham “ the mill privilege at the floom.” The demandant claimed a part of that privilege under a title derived from Ham. The question upon the trial was, whether the demanded premises were a part of “ the mill privilege at the floom,” granted to Ham, as afoiesaid ? in order to maintain the affirmative side of this question, the demandant shewed, that Ham, in 1769, granted to Mien and others, severally, certain undivided portions of “ the mil! privilege u at the floom and those grantees, in 1770, erected a mill on the land demanded, which was always called “ the floom. u mill ” The object of introducing this evidence was to induce the jury to infer, that the floom mill was built upon “ the mill privilege at the floom,” which had been granted to Ham by the proprietors of Rochester.

The tenant contended, that the mill privilege at the floom was two hundred rods above the land described in the de-mandant’s writ ; and to rebut the evidence, resulting from the circumstance, that Ham’s grantees took possession of the demanded premises and built a mill there in 1770, he shewed in evidence, that some of those grantees, in 1785, after the mill they had erected was burnt, refused to join in rebuilding the mill, because Mleri would not convey to them the land, where the mill had stood.

The rule of law is, that where it is necessary, in the course of a cause, to inquire into the nature of a particular act, and the intention of the person, who did the act, proof of what the person said, at the time of doing it, is admissible in evidence, for the purpose of shewing its true character. Phill. Ev. 202 Now, in the present case, it was most man* ifestly material to ascertain on what ground the individuals, who refused to join in erecting another mill, declined to pro* ceed. They might have declined, because they had found the mill unproductive ; or because they did not any longer choose to be concerned in mills ; or because they did not own the mill privilege. The weight of the evidence resulting from their act, as an answer to the evidence of the demand-ant, depended altogether upon the ground, on which they refused to re-build. If they refused, because they had no title, it was strong evidence, that the land was not the mill privilege at theJloom, which had been granted to Ham. Now what could be better evidence of their views and motives, than their declarations at the time ? Their declarations, that Mien owned the land, coupled with a refusal to join in re-building the mill on that account, were virtually an abandonment of the land, as belonging to another- Their declarations were therefore admissible, as a part of the res gestee. They were not evidence, that Mien owned the land ; but they were most clearly evidence, that those who made them, did not, at that time, claim the land under Ham ; and this was all they were introduced to prove. We are not aware, that there could be any better anwser to their possession, as evidence of their title, than the proof of the fact, that they abandoned the land, declaring it to belong to another.

We are therefore of opinion, that the evidence was properly admitted, and that there must be

Judgment on the verdict.