Kilburn v. Ritchie

C. J. Lyons delivered the opinion of the Court. The first question is, did the Court below properly refuse the evidence of Bale’s declaration? It is well settled that the declarations of third persons, not parties to the record, cannot be admitted in evidence, except in those cases where they have a joint interest with the plaintiff or defendant, or where some legal relation, such as that of partners, exists. Wherever such declarations, which, prima facie, are inadmissible, are sought to be introduced, the party offering them must establish their admissibility by showing the time and circumstances under which they were made. The declarations of Bale, if made before the transfer to Kilburn, might have been admissible; but if made afterwards, could not be used as evidence against him. The time when these declarations were made nowhere appears in the record; and we are compelled to presume the Court below properly refused to admit them. It was not necessary for the plaintiff to set forth any transactions relating to the bond. He might have recovered upon proof of possession. The issue must be determined from the pleadings in the cause; and the finding of the Court, sitting as a jury, is conclusive as to the facts. The Court below seems to have mistaken the law, and treated the parties as if the relation of landlord and tenant existed. This does not, however,' affect the substantial rights of the defendant. The parties could not be considered as landlord and tenant; and no notice to quit was necessary. The Court below properly refused to allow the value of the improvements as a set-off to the damages proved. A defendant entering into possession under a bond for a deed from the plain [149] tiff, cannot be considered as holding adversely under colour of title. Judgment of the Court below affirmed, with costs.