103 Ark. 183 | Ark. | 1912
(after stating the facts). We think that the court committed an error in admitting this testimony. The declarations were in the interest of the declarant, and not in any respects against his interests.
Appellant was in possession of the land at the time the declarations were made, and it was to the interest of M. Strickland, Sr., to establish that he had title to the land. The evidence at best was hearsay evidence, and should have been excluded under the general rule in relation to such evidence. Appellant had a deed to this land at the time the declarations were made purporting to be executed to him by his father, and he and not the declarant was in possession of the land. The evidence was not competent as tending to show that the deed was a forgery. A doctrine which would admit evidence of such a character would be a most dangerous one, since it would allow the most reliable evidence of title to land to be overcome by evidence of declarations made many years before when the declarant was not in possession of the land. The declarations of a party in possession are only admissible in evidence against himself or his privies in blood or estate, and are not admissible to attack or destroy the title, for that is of record and of a higher and stronger nature than to be attacked by parol evidence. Such declarations made by a person in possession are competent simply to explain the character and extent of the possession in a given case. It is the settled law in this State that the declarations of a party may be received that are made against his interests, but not to establish his own title or claim, or the claim of those holding under him. Sewell v. Young, 77 Ark. 309; Waldroop v. Ruddell, 96 Ark. 171; Jeffery v. Jeffery, 87 Ark. 496; Cotton v. Citizens Bank, 97 Ark. 568; Butler v. Hines, 101 Ark. 409; Russell v. Webb, 96 Ark. 190.
For the same reason such testimony would not be admissible as tending to prove that the possession of appellant was not adverse, because they were self-serving declarations.
It is insisted by counsel for appellees that, even if we should hold that this testimony was incompetent, appellant has waived his right to object to it, because he did not save exceptions to the testimony of the witness Hogue who first testified on the subject. We do not think so. The testimony of the witness Hogue was as to a conversation had many years 'before, and counsel for appellant on that account may have thought that it was of such an unreliable character of evidence that it would not have any influence on the verdict of the jury, and therefore did not object to it. The testimony of the witness M. O. Strickland was as to a conversation had with his grandfather in the year before his death, and was made with relation to matters that concerned the land in controversy, and on that account was likely to have more weight with the jury. Counsel for appellant objected to this testimony, because it was not in rebuttal and for other reasons. The latter was a general objection and reached to its competency and relevancy.
There were two issues of fact presented to the jury. First, whether the deed purporting to have been executed by M. Strickland, Sr., to appellant was a forgery, and, second, whether appellant had obtained title by adverse possession for the statutory period of seven years. The testimony on both these questions was conflicting, and presented disputed questions of fact. It is apparent, then, that the admission of the incompetent evidence on this question was prejudicial to the rights of the appellant.
Counsel for appellant also urge that the court erred in certain instructions given to the jury; but, inasmuch as their objections to the instructions go to the form rather than the substance of the instructions, specific objections should have been made in the court below; and, this not having been done, we do not deem it necessary to consider the objection now urged.
For the error in admitting the testimony of the declarations of M. Strickland, Sr., as to his claim of title to the land as above indicated, the judgment will be reversed, and the cause remanded for a new trial.