January, *1842. v. Soule. other grounds. The court say; "the admission supposed to FRANKLIN, have been made by Mrs. W. was against her own interest, and had the action been between Mrs. W. and the plaintiff, then Hines et. al. her acknowledgment that the property belonged to him might have clearly been given in evidence, and therefore it ought to have been received in that instance, because the right of the lord of the manor depended upon her right." The admission of Mrs. W., a former owner of the property in question, made while in possession, went to prove that she had transferred her interest in it. Lady Dartmouth v. Roberts, 16 East. R. 334, is a leading case. The action was debt for not setting out tithes in a certain farm owned by the defendant. The questions involved in the case were, whether the farm was chargeable with the tithes, and if so, whether payable to the plaintiff's testator or the vicar of Butley. The vicar had filed his bill against Leathley while owner, to enforce his claim to the tithes, and in his answer Leathley denied the right of the vicar, but insisted the tithes belonged to the testator of the plaintiff, and the chancery suit was dismissed. Leathley then sold to defendant, and his answer was admitted in evidence against the defendant. Lord Ellenborough said "it was not only evidence, but strong evidence against the defendant, and not res inter alios acta, but inter eosdem acta." The defendant stood in the same place with Leathley by a derivation of title. See also Earl of Sussex v. Temple, 1 Lord Raymond's R. 310. In Bridge v. Eggleston, 14 Mass. R. 245, the declarations of the grantor, made before the sale, tending to prove that the deed was a fraud upon creditors, were admitted against his grantee. So in Norton v. Pettibone, 7 Conn. R. 319, the admissions of the grantee of the debtor, while owner and in possession, that he purchased to defraud creditors, were admitted against his grantee. In Jackson v. McCall, 10 Johns. R. 377, the admissions of the ancestor, while in possession, that the land was limited to a given line, were received against the heir. So it has been held that the admission of the ancestor, as to the contents of a lost deed, were admissible against the heir. 3 Hamm. R. 107. In Binney v. Proprietors &c., of Hull, 3 Pick. R. 503, on the question who was bound, by prescription, to maintain a partition fence, the admissions of January, FRANKLIN, the ancestor, under whom the plaintiff claimed, made while the ancestor was in possession, were received against the Hines et. al. plaintiff. In Jackson v. Bard, 4 Johns. R. 230, in eject 1842. v. Soule. ment, the plaintiff was permitted to give in evidence, the ad- So the admissions of the grantor, that his survey did not include the land in dispute, made before he conveyed, were received against his grantee. So upon a question of fifteen years adverse possession, the admission of a person in the chain of possession, that his possession was not adverse, is admissible against those who follow, claiming the benefit of the prior possession. So where the grantor showed a certain monument, while owner and in possession, as his place of beginning, this was held evidence against his grantee. 4 Serg. & Rawle, 174. 3 Conn. R. 286. 2 Penningt. R. 706. In Jackson v. Davis, 5 Cow. R. 123, the plaintiff claimed under a given title, and it was held that the defendant, who claimed through a number of successive purchasers in fee, was as much affected by the acknowlegments by any of his predecessors, that they held by a lease from the same source from which the plaintiff claimed title, as he would have been if they had been his own. See also Van Duzen v. Scissam, 3 Johns. R. 499. In Gibblehouse v. Strong, 3 Rawle's R. 437, the declaration of one, who held the legal estate by a deed in fee, that he held the estate in trust for one who had paid the purchase money, made before he had conveyed, was received to affect his grantee. This too in a case where the legal owner was living and within the reach of process and capable of being examined as a witness. It was claimed, in this case, that he should be produced and sworn as a witness, but the court thought otherwise, and held his declarations admissible on the general principle that the admissions of the grantor are evidence against his grantee, v. Soule. and, in this state, in the case of Denton v. Perry, 5 Vt.R. 382, Franklin, January, the declarations of the grantor, made after the date and sign1842. ing of the deed, but before the grantee's acceptance of it, (it Hines et. al having been lodged with the town clerk,) were held to be admissible against his grantee to impeach the deed, on the ground of fraud against creditors. See Dorsey v. Dorsey, 3 Har. & Johns. R. 410, and Titus v. Myers, 11 Wend. R. 533. It would seem to me, that, upon principle, the same rule should be extended to personal property in this respect, which has been applied to real estate, and this too without regard to the question whether the vendor is still alive and may be called as a witness, or not. Waring v. Warren, 1 Johns. R. 342, puts the case of personal estate within the same reason. De Forest v. Bacon, 2 Conn. R. 633, which was trover for goods, is much like the present. The plaintiff claimed under an assignment in trust from one Judson to pay the debts of the plaintiff and of others. The defendant attached the goods as the property of Judson, upon the ground the assignment was fraudulent, it being claimed that there was no debt due from Judson to the plaintiff. To prove the debt, entries in the shop book of Judson, made before the assignment, were received against the defendant, inasmuch as the defendant claimed under Judson by the attachment. Swift, Ch. J. with whom the other judges concured, says; "the shop books would have been proper evidence between the plaintiff and Judson to prove the state of the accounts, and of course were proper evidence in this case to show the indebtedness of Judson to the plaintiff." I had supposed this rule had been acted upon to a great extent, though not with entire uniformity, both in this country and in England. In Woodruff v. Whittlesey, Kirby's R. 60, the evidence was received without objection, and Walthol v. Johnson, 2 Call's R. 275. Johnson v. Pat terson, 2 Hawks' R. 183, Coale v. Harrington, 7 Harr. & In Harrison v. Vallance, 1 Bing. R. 45, decided in 1822, S. January, 1842. FRANKLIN, clarations of the person, from whom the defendant had received it, were evidence against the defendant, and upon the case of Hunt v. Horn, 2 Camp. 92, being mentioned as opposed, Park, J. said that was a mere nisi prius decision, and had never been considered as law. Hines et. al. v. Soule. The same rule has been applied to choses in action, and when the admissions are made before the assignment, the rule seems to be of general application, with this exception, that it does not apply to negotiable paper, which has been indorsed, before due, to a bona fide holder in the due course of trade. Greenleaf's Ev. 220, 221, 222. Shaw v. Broom, 4 Dow. & Ryl. R. 730. Pocock v. Billing, 2 Bing. R. 269. Coster v. Symons, 1 Carr. & Payne's R. 148. Haddam v. Mills, 4 Carr. & Payne's R. 486. In Barough v. White, 6 Dowl. & Ryl. R. 379, and Beauchap v. Parry, 1 B. & Adolph. 89, the evidence was excluded on the ground that the paper could not be considered as overdue when negotiated. If it had been, it was conceded the rule would have been otherwise. See Kimball v. Huntington, 10 Wendell, 675. It has appeared to me that where the purchaser is in privity with the rights of the seller, which implies a successive relationship to the same rights of property, and takes subject to the seller's defect of title, whether applied to lands or personal property, it was most accordant with principle to let in the declarations of the vendor, made before sale and while in possession, not as hearsay evidence, but as coming from a privy in estate, and, consequently, in law, as from the party himself. But it cannot be contended the decisions have been entirely uniform. The case of Warner & Co. v. McGary, 4 Vt. R. 507, was an action by the indorsers against the payee and indorsor of a note upon a special indorsement, simply warranting the note to be due. The admissions of Turner, made after the note had been sold to the plaintiff, that he signed the note, it is clear should not be received in a suit between the indorsee and indorsor, to defeat the action. There was no privity or identity of interest between Turner and the plaintiff. The plaintiff never had succeeded to his rights by a derivation of title from Turner. The relation of seller and purchaser had never existed between them. And the question must have stood simply upon the ground that they were January, 1842. Hines et al. declarations against the interest of the party making them, FRANKLIN, and exposed to the objection of being but mere hearsay evidence. I am aware that declarations made at the time some act is done, which are supposed to give character to it, and calculated to explain its nature and quality, and so harmonize with it as to make but one transaction, are a part of the res gesta, and are, for this reason, admis+ sible. This principle may include that class of cases where the declarations of a person in the possession of lands relate to the character or extent of the possession; but I do not well see how it can apply to matter of fraud, where the admissions of the grantor have been received, as in the case of Bridge v. Egleston, Norton v. Pettibone, and Denton v. Perry; or to the admissions of the contents of a lost deed, or to the antedating of a deed, or to the declaration of a person, having a title by deed, that he in fact holds as trustee. In few of these cases, if in any, as it appears to me, do the declarations accompany an act which they are to characterize. Cases of this description, and many more that might be named, I think, should be referred to the principle that the admissions of the predecessor bind the successor to the estate. I know of no such rule of law, that, in matters of fraud, the admissions of the supposed parties to it are admissible against other parties from the necessity of the case, as has been sometimes said. Davis v. Spooner, 3 Pick. R. 234, and Jackson v. Mc Chestney, 7 Cowen's R. 360, are further illustrations of the principle, that the admissions of those under whom the party claims are admissible in evidence against him. It is needless to observe that the rule is not, and should not be, extended to cases in which the admissions were made after the declarant had parted with all his interest in and control over the property; and in Bullard v. Billings, 2 Vt. R. 309, it is held, that it must appear affirmatively, in order to affect the vendee with the declarations of the vendor, that they were made before sale. In Carpenter, Admr. of Taylor, v. Hollister et al. 13 Vt. R. 552, which was ejectment, the defendants set up a record title from the plaintiff's intestate, through one Mackres to them, and it was held that the plaintiff could not give in evidence the admissions of Mackres, to a third person, VOL. XIV. W. R. IV. 14 v. Soule. |