Noblitt v. Durbin

Mr. Justice Bean, after stating the facts, delivered the opinion of the court. 1. There was no error in striking out the testimony of the witness Bair, to the effect that he hired a team of Noblitt, and that the latter agreed that its hire should be credited on his individual debt, and he would subsequently turn over to Bair as a further credit thereon a part of the property in controversy. Where the nature of one's possession is a subject-matter of inquirj', his declarations concerning the title or explaining the character of his possession are admissible in evidence as part of the res gestae (Bartel v. Lope, 6 Or. 321; 1 Greenl. Ev. [15 ed.], § 109; People v. Vernon, 35 Cal. 49, 95 Am. Dec. 49, 70, note; Lehmann v. Chapel, 70 Minn. 496, 73 N. W. 402, 68 Am. St. Rep. 550); but this rule does not extend to the admission in evidence, as against third persons, of all statements made by a party in possession of property. To be admissible, they must be such as reflect light on or qualify the possession itself, or be so connected therewith as to illustrate its character. Thus, in Martin v. Hardesty, 27 Ala. 458 (62 Am. Dec. 773), a witness ’was permitted to testify that a person, while in possession of a slave alleged to be stolen, said that the slave belonged to him, and that he had given another person a power of attorney, and employed him to sell her. It was held that it was proper to prove what the person in possession of the slave said as to the ownership, as that was explanatory of the possession, but that his statement in regard to authorizing another to sell the slave was incompetent because it related to a past transaction, and did not constitute a part of the res gestae. And so, in this ease, the declarations of Mr. Noblitt sought to be proved by Bair did not concern the ownership of the property in controversy, nor were they explanatory of the character of his possession. It was not an assertion of ownership on his part, nor any explanation of his possession, to agree that “the hire of such team should be credited upon his indebtedness to the witness,” or that “after the rush of the season was over, he would turn over to the witness Bair a team.” There was no evidence that any credit was ever given by, [559] or team turned over to, Bair. The statements were not in conflict with Mrs. Noblitt’s ownership of or interest in the property; nor were they a claim of ownership by her husband, or any explanation of his possession; hence they were clearly incompetent. 2. The same principle disposes of the declarations of the witness Fisher. Where evidence of an act done by a party is admissible, his declarations made at the same time and in explanation thereof are also admissible, as part of the res gestae: 1 Rice, Ev. 384; 1 Greenl. Ev. (15 ed.), § 110. But this rule does not extend to a mere narrative of a past occurrence. The alleged statement to Fisher was made some time after the execution and delivery of the bill of sale, and did not accompany the act, but was a more narrative of a past event, and hearsay. 3. There was no evidence as to whether Mrs. Noblitt had made and filed a list of the personal property in question, and for that reason it was not error to refuse to give the instruction as to the effect of her failure to do so. Moreover, the statute would seem to provide for the filing of such a list only when the property claimed was owned by the wife at the time, of her marriage, or afterwards acquired by bequest, inheritance, or gift of some person other than her husband: HilFs Ann. Laws, § 3000. The property in controversy here was acquired by Mrs. Noblitt, if at all, by purchase, and hence does not come within the language of the statute. The other instruction requested and refused was covered by the general charge. The judgment is therefore affirmed. Affirmed.