Norton v. Pettibone

Daggett, J. On looking into the act of the General Assembly, passed in May, 1825, (subsequent to this levy) to confirm levies of executions on real estate, it is found, that the defect in the levy, if it be one, is cured by that act. That this act is constitutional, and therefore of binding authority, was expressly decided, by this Court, in the case of Mather v. Chapman & al. 6 Conn. Rep. 54. The objection is, therefore, properly abandoned, by the counsel, upon its appearing that the defect was embraced and cured by the act in question. Another objection, however, is made, which will now be considered. This relates to the declarations of Zechariah Marks, which were admitted on the trial. That such declarations, so made, are admissible, I had supposed to have been too long and too well settled to be doubted. It has been so ruled more than twenty times within the last forty years. Declarations of a person, while in possession of the premises, against his title, are always admissible, not only against him, but against those who claim under him. To this point the following cases are express. Walker v. Broadstock, 1 Esp. Rep. 458. Davis v. Pierce & al. 2 Term Rep. 53. Waring v. Warren, 1 Johns. Rep. 340. 343. Jackson d. Griswold, v. Bard, 4 Johns. Rep. 230. Jackson d. McDonald v. McCall, 10 Johns. Rep. 377. In Beers & al. v. Hawley, 2 Conn. Rep. 467. this point was considered, and the whole Court of Errors concurred in the admissibility of the evidence. Three members of the Court gave their opinions seriatim — Judges Swift, Hosmer and Gould; and all recognized, in direct terms, this [324] doctrine. The latter says: “ The declarations of a former proprietor against himself, have always been admitted against those who claim under him.” P. 472, 3. The motion, therefore, must be refused. The other Judges were of the same opinion, except Wij> iiams, J., who gave no opinion, having been of counsel in the cause. New trial not to be granted.