Cavin v. Smith

• Decision Date: 31 January 1857
• Citation: Cavin v. Smith, 24 Mo. 221 (Mo. 1857)
• Court: Missouri Supreme Court
• Parties: CAVIN, Respondent, v. SMITH & KERR, Appellants.

24 Mo. 221

CAVIN, Respondent,

v.SMITH & KERR, Appellants.

Supreme Court of Missouri.

January Term, 1857.

1. Although declarations of a party in possession of property against his interest are admissible in interest against one claiming under him, they must, to be competent evidence, be made prior to the inception of the successor's title.

Appeal from Polk Circuit Court.

The facts of this case sufficiently appear in the opinion of the court when compared with the report of the same case when on error before, in 21 Mo. 444.

Napton, for appellants.

F. P. Wright, for respondent.

LEONARD, Judge, delivered the opinion of the court.

The question upon this trial was, to whom the mare belonged at the time she was seized by the constable under the execution against Ray to satisfy the judgment against him in favor of the defendant. The plaintiff insisted that she belonged to him, and was in Ray's possession, if at all, under a contract that the latter should have her upon his completing certain work that he had undertaken for the plaintiff. When the cause was here before the judgment was reversed, because the court excluded Ray's declarations, made while he was in possession of the mare and before the constable's levy, to the effect that “he was to have the mare on condition that he completed the work he had undertaken for the plaintiff;” and now it must be reversed because the court has admitted Ray's declarations to the same effect, made after the constable had taken her in execution. The admissions of a party to a suit, made against his own interest, are of course competent evidence against himself, and it has been laid down generally (Cow. & Hill's Notes, p. 644, note 481) that these admissions, coming from one who was the owner of the property at the time, and being...