Carpenter v. Hollister

The opinion of the court was delivered by Collamer, J. On the trial, the admissions of Mackres, who is still living and was afterwards a witness in the case, made while he was in possession and before his deed to Hol-lister, were received to prove the insanity of Taylor, who deeded to Mackres. Was this error ? [555] This proceeding is claimed to be sustained on the ground that every concession made by one in possession of land, against his interest, is binding on him and all who claim under him. In this state, and under our registry system, it is understood that the title to land appears of record, that every bona fide purchaser of such title is safe. But if such purchaser may be defeated by the private concessions of any previous owner, in his chain of title, made while owner, he cannot be safe. When such must be the consequence, we should be slow to adopt the principle; but if such is the clear result of authority it must be followed. An examination of the authorities presented by the plaintiff, leads to a view of the whole doctrine of hearsay testimony. As a general rule, hearsay, or the statements of persons not parties of the record, are inadmissible; and when admitted, it is by some exception to the general rule. The rule is a wholesome one, and the exceptions should not be multiplied. The first exception I would mention is, that it has been permitted to show the concessions of men made contrary to their interest at the time. But such admissions have never been received, merely on that ground, when such person was still living and could be a witness in the cause. This point underwent full examination in this court, in the case Warner v. Mc Gary, 4 Vt. R. The admissions of Mackres were therefore not admissible, merely on the ground that they were made against his interest, for he was still living, and a witness in the cause. This disposes of several of the authorities cited by the plaintiff. The admissions of persons whose interest is, in law, identical with the party, made contrary to their existing interest, have been received against such party. Such are the admissions of a payee of a note, made while holder, which have been admitted against the indorsee, who took the note, overdue. This point was fully considered in Warner v. McGary, and such is the case of Sylvester v. Crapo, 15 Pick. R. 92, cited for the plaintiff. Such was not this case. In matter of fraud, and in relation to a fraudulent conveyance, the acts and concessions of the parties thereto are, from the nature and necessity of the case, admissible. But no injury can be thereby produced to any innocent purchaser, for unless it appear that he purchased with notice of the fraud, [556] he will not be affected thereby. The case Norton v. Pettibone, 7 Conn. R. 319, and Hale v. Smith, 6 Greenleaf R. 416, cited for the plaintiff, are of this character ; but such were not the concessions in this case. Where the words of a person, accompanying his act, give character to the act, they are regarded as part of the £ res gesta,’ and are admissible. Such are the assertions of an agent in the execution of his agency. Such were the declarations of the pauper, giving character to his residence, in the case Baring v. Calais, 2 Fairfield’s R. 463. Nearly allied to this last, is another exception, and under which come most of the plaintiff’s authorities. The statements of a person in possession of land, as to the character and extent of that possession are admissible, as against all-who claim under that possession. Of the cases cited by the plaintiff, the following come under this head. In Reed v. Dickey, 1 Watt’s R. 152, Campbell held land for McCall, and sold to Templeton who sold to defendant. It was ruled that the admissions of Templeton, while holding the land, that he knew the land was held under Me Call, were admissible. Dorsey v. Dorsey’s Heirs, 3 Harr. & Johns. R. was a bill to enforce a trust, and the only concession admitted, was, that of a purchaser that he purchased as a trustee. Jackson v. Bard, 4 Johns. R. 230, was, in effect, but admitting a concession of a tenancy under plaintiff’s grantor. All the following cases, cited by the plaintiff, are concessions by the occupiers of land, either of the character or extent or boundaries of their possessions;—Jackson v. Vredenburg; Jackson v. Mc Call; Walker v. Broadstock; Davies v. Pierce; Betts v Devanport; Williams v. Ensign; Higley v. Bidwell. Deming v. Carrington, Woolway v. Rowe. Conn et al. v. Penn. Beecher v. Parmelee. This disposes of all the cases furnished us by the plaintiff, except the following cases. Waring v. Warren only decides that the statements of a possessor cannot be given in evidence to sustain his right. Beers v. Hawley was in chancery, and the court compelled the assignee of a mortgage to abide by the written agreement of his assignor, that the mortgagee should not claim a certain accidental and unintended priority. The case Rice v. Bancroft, which clearly has no bearing on this question. [557] In examining these cases we have regarded only the true point involved in their decision, overlooking the obiter dicta, and what may have been said by way of illustration. Regarded in this way, and which is the only proper way, they do not : , ^ sustain, nor does any one ot them sustain, the broad principle hei'e contended for by the plaintiff, which is, that any concession of a grantor, made against his title, while he was in possession, is admissible against all who claim underhim. It is not to be disguised that some individual, judges, in delivering the opinions of the court, have so said. It was so said by Thompson, J. in Jackson v. Bard, and by Buchanan, J. in Dorsey v. Dorsey’s Heirs, and by Daggett, J. in Norton v. Pettibone; but in all these cases, such sayings were not necessary to the decisions, and do not seem to be sustained by authority. It has been holden in this state, that the concession of a grantor that he held as tenant, or of the limits of his possession, may be given in evidence against his grantee, but this has never yet been so holden as to one who held by a deed on record, showing him in possession in his own right, or where the boundaries are certain by his deed. That would permit the deed of record to be contradicted or qualified by parol. Such testimony, for suqh a purpose, was overruled in The Proprietors of Claremont v. Carlton, 2 N. H. R. 369. In this case, the plaintiff insists that the concessions of a grantor made while in possession, not explaining or qualifying that possession, are admissible to defeat his title, apparently good of record, even against an innocent, bona fide purchaser, on good consideration. This we think dangerous and unprecedented. Judgment reversed.