Kimball v. Morrell

• Decision Date: 01 May 1826
• Citation: 4 Me. 368
• Parties: KIMBALL v. MORRELL
• Court: Maine Supreme Court

4 Me. 368

KIMBALL v. MORRELL

Supreme Judicial Court of Maine, Kennebec

May, 1826

AT the trial of this action, which was a writ of entry for lands in Mount Vernon, the demandant claimed the land under one David Philbrook; and to support his title, called a witness, who testified that about a year before the death of one Benjamin Philbrook, who owned several parcels of land in Mount Vernon the said Benjamin and David called the witness and his brother, to subscribe their names as witnesses to a deed made at the same time, from Benjamin to David, of a tract of land in that town; and they accordingly did so subscribe their names. He also testified that the deed was acknowledged before a magistrate, and was handed by David to the witness to be kept till he should return from the eastward; and that about three months afterwards he called for and received the deed. The witness did not particularly recollect that it had a seal.

The demandant proposed further to prove, by the same witness that the grantor, at the time of executing the deed, declared that it was a conveyance of the premises demanded in this action. But Weston J. before whom the cause was tried rejected this testimony as inadmissible.

There was no evidence of the loss or destruction of the deed; nor that any search or inquiry had been made for it. But the evidence rejected was not objected to on that ground; the trial proceeding upon the assumption on the part of the demandant that the deed, if it ever existed, was lost or destroyed; and proof of the latter fact was not required or called for on the part of the tenant.

A verdict was taken for the tenant, subject to the opinion of the court, upon the question whether the evidence rejected ought to have been received.

Orr and Emmons, for the demandant, contended that the proof ought to have been admitted. It was part of the res gesta. The declarations of a grantor, made before or at the time of the conveyance, are always admissible, if made against his interest, and not prejudicial to rights of third persons existing at the time. The proof offered was precisely of this character. Bridge v. Eggleston 14 Mass. 245. The evidence admitted went to prove the existence of a deed of land in Mount Vernon, which was lost. The party offered further to designate the land, by the same mode of proof; which was nothing more than giving in evidence the whole of the grantor's declarations made at the same time, and relating to the same subject; where a part of those declarations was confessedly admissible, upon acknowledged principles. The matter of the seal was wholly for the jury to determine, upon the evidence before them.

Bond on the other side, argued against the admissibility of the evidence proposed, because no foundation was laid by the previous introduction of the preliminary proof of diligent but ineffectual search for the deed. It was not denied at the trial that the deed, if it ever existed, was now lost; but the point in issue was, whether any such deed ever existed. The evidence offered to shew this, was nothing more than hearsay; and the death of the grantor gives it no higher character. Gray v. Goodrich 7 Johns. 95. 15 Johns. 493. 1 East 373. The declarations of a grantor can never be admitted to prove the existence or contents of his own deed. He cannot explain its latent ambiguities; ...