Smith v. Martin

17 Conn. 399 | Conn. | 1845

Waite, J.

On the trial of this case in the court below, the controversy between the parties was as to the dividing line between the lands of the plaintiff and those of the defendants. The plaintiff, in support of her claim, offered in evidence the declarations of her father, from whom she derived title, as his heir at law, made while he was living, and the owner of the lands which descended to her, as to the bound between the lands of the parties. The court, not adverting to the distinction between declarations made by an owner against his interest and those in his favour, admitted the evidence.

Upon recurring, however, to the authorities, the rule seems to be perfectly well settled in this state, that the declarations made by the owner of real estate, adverse to his title, are admissible in evidence, not only against him, but all others claiming title to the same lands under him. Deming v. Carrington, 12 Conn. R. 1. Rogers v. Moore, 10 Conn. R. 13. Norton v. Pettibone, 7 Conn. R. 319. Beers v. Hawley, 2 Conn. R. 467. White v. Long, 24 Pick. 319.

So far tire rule has gone, but no further. And courts in laying it down, have been very careful to limit it, in its operation, to cases where the evidence is offered against the interest of the party making the declarations, or those claiming under him. We are clearly of opinion, that the rule ought not to be extended. The presumption is, that the declarations of a party as to his title, made against his interest, are true. But on the other hand, to allow him to make declarations in support of his title, and then give those declarations in evidence, would in effect be to allow him to make evidence in his favour, at his pleasure. A similar effect would be produced, if they might be proved by those standing in his situation, and claiming the same title which he did.

The evidence, therefore, was improperly admitted; and for this reason, a new trial must be granted.

With respect to the evidence ofwhat was said by Solomon Smith and Joshua Smith, at the time when the sale was made to the latter, as to their having ascertained the extent of the land, by pacing it, so far as that evidence went to show the declarations and admissions of Solomon Smith, who owned the lands now claimed by the defendants, and under whom they derive title, it comes within the rule already stated, and was admissible, when offered by the plaintiff. But as to any evidence of the declarations of Joshua Smith, unconnected with the admissions of the other party, — it would be inadmissible.

A new trial must be granted.

In this opinion the other Judges concurred, except Church* J., who was not present.

New trial to be granted.