Pike v. Hayes

14 N.H. 19 | Superior Court of New Hampshire | 1843

Gilchrist, J.

The declarations of Mrs. Hayes do not come within the description of declarations against interest. When she made them, there was no controversy about the boundaries of the respective lots. No person set up any claim to the locus in quo which she was called upon to resist, nor did she admit that the land of which she was in possession belonged to another. They were not declarations against her interest, unless it be against the interest of a landholder to admit that his land has any boundaries whatever. They were simply statements where the boundary was between her land and that of her husband, and they were nothing more. She knew where the boundary was, probably, and had no motive to make a mis-statement about it. If admissible, they must be so on some other ground than their probability derived from their being against her interest. The effect of her declarations was, that they tended to prove that the land which her heirs claimed by descent from her, did not belong to her ; but they might have that effect without coming within the legal definition of declarations against interest.

But the evidence was admissible on another ground. It was a statement by a deceased owner of land, where her boundary was, and as such it binds her and her privies. A declaration by a person in possession that he held as tenant to the devisor, is binding upon all claiming under the tenant. Holloway vs. Rakes, cited by Buller, J., 2 T. R. 55. Copies of a bill and answer in a suit by a vicar for tithe hay against S. L., then occupier of the close, and from whom the defendant purchased, denying the vicar’s right, and setting up a right in the ancestors of the plaintiff, upon which the vicar abandoned the suit, were holden to be evidence against the defendant. Countess of Dartmouth, vs. Roberts, 16 East 334. In Jackson vs. Davis, 5 Cowen 129, it is slated by Sutherland, ./., as a general position, that a party is as much affected by the acts and acknowledgments of his predecessors as though they were his own. To the same effect are the cases of Jackson vs. Bard, 4 Johns. 230; Jackson vs. Myers, 11 Wend. 553; West Cambridge vs. Lexington, 2 Pick. 536, and Doe vs. Pettett, 5 B. & A. 223. In Jackson vs. McCall, 10 Johns. 377, the point now before us is expressly settled. It was there held that a statement by a deceased owner of land, under whom the plaintiff claimed, where the boundary was between his land and that of the defendant, was evidence for the defendant. This decision does not conflict with the case of Shepherd vs. Thompson, 4 N. H. Rep. 213. There the defendant offered evidence that persons, at the time in possession of the close which the defendant claimed, showed an oak tree as the boundary of the close ; but the evidence was held incompetent, on the ground that it must be presumed to have been their interest to extend the boundaries of the lot, and their declarations in favor of their interest were not evidence. But in that case there was no privity between the former occupants of the land and the party against whom their declarations wore offered, and that fact sufficiently distinguishes it from the present case. We are of opinion that the declarations of Mrs. Hayes were competent to be submitted to the jury, unless there be some objection to them on account of her being a married woman at the time some of them were made.

As all the declarations went to the jury without discrimination, it is necessary to inquire whether those made during coverture were admissible. It did not appear that they were made in presence of her husband, or that in making them she was influenced by him. That she was not under i s influence in respect to them, appears from the fact that she made the same declarations after his death. If they should be rejected, it must be on the ground that a wife, in all her statements which could by possibility affect the interests of her husband, must be presumed to act under coercion. It has been held that a wife, accompanying her husband in the commission of a crime, is presumed to act under his coercion, and consequently without any criminal intent. Rex vs. Knight, 4 C. & P. 116; People vs. Davis, 1 Wheeler’s Cr. Cas. 230. But we do not understand that the presumption of coercion extends far enough to embrace a case like this. Professor Greenleaf states that the rule excluding the testimony of a wife is analogous to that which excludes confidential communications made by a client to his attorney. Section 338. Such seems to have been the opinion of the court in the case of Coffin vs. Jones, 13 Pick. 213, although the point was not necessary to the decision of the case. There is no reason why the wife, after the death of her husband, should not state facts which came to her knowledge from other sources, and not by means of her situation as a wife; and her knowledge of the boundary in this case she did not procure from her husband. But it is enough for this case to say that her declarations are like the declarations of any other owner of land, and binding upon her privies, there being no presumption that they were made under coercion ; and if there were, it would be sufficiently rebutted by the fact that she repeated them after the death of her husband.

Judgment on the verdict.