Eakle v. Clarke

EociNSON, J., delivered the opinion of the Court. The appellee and Samuel Horine, being seized of undivided moieties in a certain grist mill, rented the same to the appellant. This suit was brought to recover one-half of the rent claimed to be due the appellee. After evidence on both sides in regard to the contract of renting, the appellant offered to prove by a witness, that Horine, since deceased, admitted, that by the terms of renting, the appellant was to pay to him, Horine and appellee, an annual rent of four hundred and fifty dollars, and that the lessors “ were to keep or pay for keeping said mill in repair.” This declaration was made after the contract of renting, and not in the presence of the appellee. We know of no rule of law by which this evidence was admissible against the appel-lee. Being the declaration of a third party, it could only bind him, or another having a joint interest. The reason and limit of the rule governing and controlling the admissibility of such declarations or admissions, is very clearly stated in the notes to Bauerman vs. Radenius, 2 Smith’s Leading Cases, 387 : “ So far as the interest is joint and the act of one could affect the other, or bind the whole interest, so far his admission shall affect and bind, and no further.” Or as laid down in 2 Stak. Eki., Part 1, 29, the declaration is not admissible, unless “ the party making such admission or declaration, can be considered as identical in interest and authority with the other, or to be his mere instrument or agent.” This rule is constantly applied in cases of partnership, where the partnership being first proved, the admission of one so far as the power of a partner extends, is evidence against all. The rule has also been extended to cases in which the party to the suit is, by succession of title so far in privity with another, that the acts of that other could have affected his interest. Hence the declarations of a former possessor or proprietor of land against his interest, made during the continuance of his interest, not after, are evidence against those subsequently claiming under him. [326] (Decided 11th March, 1869.) Tested by these principles, the declarations' of Horine were clearly inadmissible. His interest in the property was not joint, but separate, and there is no evidence to show that he was authorized to bind the appellee either by his acts or declarations. It was in fact an attempt to bind one tenant in common by the declarations of another, made after the contract of renting, and without the privity of the party against whom the evidence was offered. Upon neither reason nor authority, could such evidence be received. ■ The motion in arrest of judgment was properly overruled. The reasons assigned went to matters of form, and therefore within the 8th sec. Art. 75, of the Code. For these‘reasons the judgment must be affirmed. Judgment affirmed.