79 Me. 265 | Me. | 1887
This, a real action, involves the location of the line between the plaintiff’s and defendant’s premises.
A person, now deceased, who was once an owner in plaintiff’s land, while an owner and upon the land, made declarations respecting the line favorable to the defendant’s claim. These admissions in disparagement of his own title were properly proved at the trial by the defendant. To detract from the force of this evidence, the plaintiff was allowed to prove later and-contradictory statements made by the same person under other circumstances when he was not upon the land. The last declarations were not admitted as original, primary evidence, but to contradict the first declaration. What the former owner said for himself was admitted to impeach what he had previously said against himself. The last declarations were not admissible. It was not a legal contradiction. It was unsworn evidence.
The fallacy of the idea allowing the testimony to be received, consists in looking upon the former owner as a witness in the cause. The first declarations were made by him while standing
The question in the ruling does not appear to have received attention in our own state. It has been several times considered in Massachusetts, and is there in each instance disposed of unfavorably to the plaintiff here. The case of Baxter v. Knowles, 12 Allen, 114, meets the point exactly, where it is said: "The declarations of the defendant’s testator, from whom he claimed title, were not made admissible in his favor by the fact that his declarations at other times were given in evidence by the plaintiff as admissions.” Pickering v. Reynolds, 119, Mass. 111, is also precisely in point.
Exceptions sustained.