Nichols v. Hotchkiss

unanimously, the judgment was reversed. Some member was appointed to draw the reasons ; but this was never done. The reporter has understood, that, when the case was under consideration, there was, on the first point, no diversity of opinion, all the Court holding, that the declarations of Downey and his wife were inadmissible. On the second point, Ellsworth, Asst, remarking, that it was competent for Downey and his wife to give the evidence offered, as there was no covenant in the quit-claim deed, Hosmer, Asst, replied as follows : I do not assent to that proposition. A deed of release is a common mode of assurance ; and most generally is intended, in this State, to pass the estate without covenants. But it is very different from the English release. It is here a primary conveyance, and not secondary, as in that country. It differs from a deed of grant without express warranty only in this, that no warranty is implied. The objection does not proceed exclusively on the ground, that a man is estopped by his covenants ; but that no person shall be permitted to act so base a part as to impugn a deed he has once given. I am of opinion, however, that the testimony of Downey and his wife was inadmissible, not merely on the ground *126that it invalidated their deed, blit because it was in contradiction of it. The object was to shew, that the plaintiff had an estate defeasible, which by the deed, appeared to be absolute. If the testimony were admissible, it must have been on this ground, that the inquiry related to a point of time anterior to the deed. The question was, what was the character of the plaintiff’s possession, at the date of the defendant’s deed, which was some time before the quit-claim to the plaintiff. Was he in, claiming to hold adversely ; or, was he the mere tenant of Downey and his wife ? In my mind, it was doubtful, whether' Downey and his wife might not explain this transaction. Indeed, I think they might ; for this does not contravene the deed. That speaks for itself ; but the character of the possession, at the date of the deed to the defendant, was before the existence of the release to the plaintiff; and that can have no possible effect upon it.

Relative to the admissibility of the parol declarations, I consider the error of the Superior Court as very apparent. The witnesses, Downey and his wife, were in court ; to their testimony the defendant made no objection. What prevented their testifying ? Nothing* but the determination of the plaintiff. He, then, opposed the testimony, but wished to avail himself of their declarations, when out of court, and not under oath. I can find. no principle, and sure I am, none has been adduced, which countenances their rejection. In all the cases cited, the witnesses were dead, or interested and inadmissible ; and the party against whom they would have been offered, if disinterested, and to be had, discovered no willingness that they should testify.

The point may be made more perspicuous by a few remarks, Parol declarations are admissible, either from the nature of the subject to which they apply, or by reason of the relation, which the person sustains, against whom they are to be used.

*127JL As to the nature of the subject. When they are the best testimony the nature of the case admits of, parol declarations of disinterested persons are admissible. There•fore, possession may be proved, by parol declarations of tenants who are since dead, or have become interested ; prescriptive rights may be thus proved ; so may pedigrees, the deaths of persons in foreign lands, the boundaries of parishes, &c. But this exception to the general rule against hearsay, is because the reason of the primary rule does not apply- On this principle, the declarations of a bankrupt relative to his motives for denying himself to his creditors* and the admissions of debtors when the action is against the garnishee, are received. This includes all the cases cited.

2, The relation in which the person is, against -whom the testimony is used, will render parol declarations proper. For example, the confessions of a man against himself, who is party to the suit, and as against those who claim under him, in many cases, are admissible. But in the principal case, there is nothing in the parol declarations of mDotuney and his wife, which should make them evidence against the defendant, so long as Downey and his wife are present, capable of testifying, and no objection is made to their testimony.