83 Me. 150 | Me. | 1891
This is a writ of entry. The parties are owners of adjoining lands, in Auburn, which are parts of original lot number one, formerly in Poland, according to Bakerstown survey. In 1820, said lot was owned by Josiah Little, who, February 14, 1822, convoyed to Jonathan Chandler, Jr., father of the defendant, fifty acres off of the northeasterly end of said lot, bounded on the southwest by a line parallel with the northeast line of the lot, and sixty-six rods distant therefrom. The contention between the parties is the true location of this line. February 3, 1829, said Chandler conveyed to Jonathan Lane ten acres of land on the northwest side of said fifty acres, and on the same day he conveyed the balance of the fifty acres to Rachel Chandler, and on April 10, 1848, said Rachel conveyed to Rufus C. Lane five acres of the remaining portion of the fifty acres, lying southeasterly of said fen acres, and Rufus C. Lane acquired the title to the ten acres. January 9, 1864, said Rachel conveyed the balance of the fifty acres to the defendant.
January 9, 1850, Josiah Little, or his heirs, conveyed the balance of said lot number one to Rufus C. Lane, who conveyed it, with the ten acres and five acres to Enoch J ones, May 28, 1860. Jones conveyed all, except the ten and five acre lots, to Lane and Hicks, December 25, 1860. «July 8, 1871,
The defendant’s exceptions are to the admission of the testimony of Bíosea W. Tinker, husband of Mary J. Tinker, who acted for her in negotiating the purchase of the ten and five-acre lots, of said Enoch Jones. The testimony states the acts and declarations of Jones, to the witness in regard to the location of the southwest line of said lots, — the line in dispute,— during the negotiations and while on the land. We think the testimony was competent and properly admitted.
In Daggett v. Shaw, 5 Met. 223, the rule is declared to be, in cases like this "that the declarations of ancient persons, made while in possession of land owned by them, pointing out their boundaries on the land itself, and who are deceased at the time of the trial, are admissible in evidence, where nothing appears to show that they were interested in thus pointing out their boundaries; and it need not appear affirmatively that the declarations were made in restriction of, or against, their own rights.” Many authorities are cited in the opinion in support of the rule. We do not deem it necessary to repeat them here.
This rule has since been affirmed in Massachusetts, in Bartlett v. Emerson, 7 Gray, 174; Ware v. Brookhouse, Ib. 454; Wood v. Foster, 8 Allen, 24; and in Niles v. Patch, 13 Gray, 254, is fully recognized in an opinion by C. J. Shaw, and extended to the acts and declarations of one in possession of the land under a contract of purchase, but who had no title.
We think this rule has been recognized and acted upon in cases like this in this state. It is an exception to the general rule of evidence, that hearsay evidence is incompetent. Landmarks in the early surveys are usually formed of perishable
In this case, the testimony objected to by the defendant tends to prove that Jones, the owner of a part of the lot on one side of the disputed line, while upon it, negotiating a sale to Tinker, pointed out the location of the line atthe southwest end of his lots, and the landmarks upon it. It is not suggested that Jones had any interest to locate the line further east than it really was. In fact that would curtail the length of his lots. It is clearly within the rule settled in the Massachusetts cases, supra.
True, it is contended by the defendant’s counsel that the testimony of the witness tends to show that Jones’ declaration, while pointing out the marked hemlock tree, was after he had conveyed to Mrs. Tinker, because on cross-examination he said it was after March 20, 1833, and the date of the deed to her is March 14th, of that year. But in his direct examination, he said it was before the purchase was made, and while he was negotiating for the purchase. The evidence was in deposition, and these apparently conflicting statements raised a question to bo determined by the judge, in the exercise of Ms discretion, “whether the acts and declarations referred to “were while Jones held the title. We think the discretion was properly exercised. The witness would be much more likely to remember accurately the fact of examining the land and its lines during the negotiations than the precise day of the month; and then it is within our general knowledge that the date of the deed is not always identical with the date of the closing of the sale.
Exceptions overruled.