McGregor v. Wait

Metcalf, J. 1. We are of opinion that the judge rightly declined to admit evidence that Mrs. Hobbs, without her husband’s knowledge, applied to Mrs. Wait for leave to put a shop on a part of the ground over which the defendants claim a right of way. That evidence was offered for the purpose of proving a right of way over land owned in fee by Mrs. Hobbs, and of which her husband and herself were seised and possessed in her right. If it was admissible for this purpose, it must have been on the ground of her confessing or admitting that her land was subject to a servitude. Such a confession or admission, by her alone, would not bind either her, or her husband, or her heirs, or the plaintiff, who is the grantee of her husband and herself. It is certain that she could not have made a valid grant of a right of way. Being under coverture, she was not competent to make [75] a grant which would estop either herself or her heirs. And “ to say that one may, by acts in the country, by admission, by concealment or silence, in effect do what could not be done by deed, would be practically to dispense with all the limitations the law has imposed upon the capacity of infants or married women to alienate their estates.” Lowell v. Daniels, 2 Gray, 169. 2. Evidence of George Hobbs’s application to Mrs. Wait, for leave to place fagots on the land over which a right of way is now claimed, had no legal tendency to prove such right, and was properly excluded. The nature and extent of his agency (if any) for his parents are not shown, and therefore his implied admission of a right of way cannot affect them or their grantee. 3. The statements made to Abraham Hobbs, by Goodhue and “ the neighbors,” are not to be taken as true, or as admitted by Hobbs, by reason of his silence. Besides; if Hobbs were held to have admitted Wait’s right of way, that admission would be evidence against himself only. He was merely tenant for life, (his own life or that of his wife,) and could not affect the rights of other parties by any admission, or even by a grant, of a right of way over land so held by him. Gale & Whatley on Easements, Pt. I. c. 5, § 2. 3 Stark. Ev. (4th Amer. ed.) 1217, 1218. Peake Ev. (5th ed.) 318. 4. We are of opinion that William Wait was rightly required to produce the deed under which he made claim, and that it was rightly allowed to be read in evidence without calling the attesting witness. See Jackson v. Allen, 3 Stark. R. 74; Pearce v. Hooper, 3 Taunt. 60; Doe v. Hemming, 9 D. & R. 15; Jackson v. Kingsley, 17 Johns. 158. Exceptions overruled.