4 Me. 368 | Me. | 1826
The opinion of the court, the Chief Justice not sitting in the cause, was delivered by
When a party, on an issue to the country, would avail himself of an instrument in writing, lost by time and accident, he should first prove that an instrument was duly executed with the formalities required by law; and secondly, that the instrument so executed has been lost. Then, and not till then, he is permitted to give evidence of its contents.) Though there was no evidence offered by the demandant, and no direct admission by the tenant, on the trial of the issue, that the deed in question was lost, he denying that there ever was any such deed; the cause was suffered to proceed, and did proceed without objection by the tenant, on that assumption. We may therefore
It is contended that the declarations offered to be proved are not subject to the objection, nor within the rule of law in regard to hearsay testimony; because those declarations were parts of the transaction ; and because they were against the interest of the person making them.
When the declarations of parties are admitted in evidence as a part of the res gesta, it is because those declarations go to explain the true intent and meaning of the parties at the time. Now the true intent and meaning of a deed, and the contents of tha'-deed, are to he gathered from the deed itself. The language of the parties to it, whether used before, or after, or at the time of its execution, cannot be given in evidence to limit, restrain or enlarge its meaning. The declarations theiefore of the parties to a deed, as to its contents, are no part of the res gesta.
Nor is the argument, urged from the supposed adverse interest of the party making the declarations, more tenable. It does not appear that the declarations were against his interest. If a grantor should convey away by deed a valuable estate, saying at the time that-the premises conveyed wnea certain parcel, known be of little value, how would his interest stand affected by his declarations ? He has given a deed — he has conveyed something. His declarations alter not the fact. He wishes, perhaps, it may be understood he has conveyed little, when he has conveyed much. But Í attach no importance, in this case, to this mode of meeting the argument of the demandant’s counsel. Admitting the grantor’s declarations to have been against his interest. that does not make these declarations evidence against the tenant. If by such declarations the demandant may prove a part of (he deed, he may prove each part ; and thus the mere parol declarations of a grantor may be proved to defeat or overreach his solemn subsequent conveyance to a third person. The objee i’ons are overruled and there must be
Judgment on the verdict
