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CHAPTER X.

OF THE EVIDENCE IN THE ACTION OF EJECTMENT.

THE facts necessary to be established by a claimant in ejectment, when his title to the premises is controverted, are as follows. First, he must prove that he had the legal estate in the disputed lands at the time of the demise laid in the declaration; secondly, that such legal estate was accompanied by a right of entry; and, thirdly, that the defendant, or those claiming under him, were in possession of the premises at the time when the declaration in ejectment was delivered. When, indeed, there is a privity between the parties, as if the relationship of landlord and tenant has subsisted between them, proof of title will be unnecessary; for a party will not be allowed to dispute the original right of him by whom he has been admitted into possession,(x) although he is at liberty to show that such right has expired.(y) In cases of this nature, therefore, it will be sufficient to prove, that the defendant, or those under whom he claims, (for the rule extends to under-tenants,(z)) were ad

(x) Driver v. Laurence, W. Black. 4 T. R. 682. Vide Baker v. Mellish, 1259. 10 Vez. Jun 544.

(y) England, d. Syburn, v. Slade,

(s) Barwick, d. Mayor of Rich mond, v. Thompson, 7 T. R. 488.

mitted into possession of the premises in question, by the lessor of the plaintiff, and that their right to the possession has ceased. And upon the same principle, if the defendant has held as tenant to some third person under whom the lessor claims, although the derivative title of the claimant from such third person must be proved in addition to the evidence necessary in the last case, proof of the title of the third person himself will not be required.

The identity of the lands, and the possession of them by the defendant, can always be proved without difficulty, when a privity exists between the parties, by the fact of payment of rent, or by the acknowledgment of the defendant that he is tenant, &c. When there is no privity, the general mode of proof is by reading the deeds or wills under which the lessor claims, and showing that the names and abutments of lands in the defendant's possession, agree with the premises described therein; or by showing that the lands in dispute were formerly in possession of the ancestors, &c. of the claimant; and the declarations of deceased tenants may be received in evidence, for the purpose of proving that any particular lands formed part of the estate they occupied. (a) Cases in which it is extremely difficult to prove identity and possession will, indeed, sometimes occur, from the deficiency of the description in the title deeds, the length of time during which the claim has lain dormant, or other causes: but these cases all depend upon their own circumstances, and it is impossible to give any general directions concerning them.

The evidence necessary to establish the other parts of

(a) Davies v. Pierce, 2 T. R. 53. Et vide Ivat v. Finch, 1 Taunt. 141. Outram v. Morewood, 5 T. R. 121.

the lessor's case will of course vary according to the nature of his claim. We shall, therefore, first consider the several proofs requisite in support of each particular title, when no privity exists between the parties: and, secondly, the proofs required when such privity does exist.[3]

[3] It may be well here to state how far parol declarations have been de termined to be admissible in ejectment. The declarations or confessions of a party, when against himself, may be given in evidence in ejectment, as to facts which rest in parol, and are dehors the title itself; or facts relating to the time or manner of holding possession, the boundaries or location of the premises in question, the delivery or loss of a deed, or that the same had been ante-dated. In the case of Waring v. Warren, 1 Johns. 343. it was determined, that the declarations of a party holding adversely could not be given in evi dence to support his own possession, though they might be received when against it. And in Jackson v. Bard, 4 Johns. 230. evidence of the declarations of a party in possession was held admissible against him, and all claiming under him, which declarations related principally to the ante-dating of a deed, And in Jackson v. M'Call, 10 Johns. 377. parol confessions of a person in possession, as to the true boundary line, were held admissible.

But the acknowledgments or confessions of a party, relating to the title itself, are inadmissible In the case of Jackson v. Sherman, 6 Johns. 19, 21. it is said by the Court, that "the acknowledgments of a party as to title to real estate, are a dangerous species of evidence, and though good to support a tenancy, or to satisfy doubts in cases of possession, they ought not to be received as evidence of title. This would be to counteract the beneficial purposes of the statute of frauds." And in the case of Jackson v. Cary, 16 Johns. 302, 306. Spencer, J. says, "Although parol declarations of a tenancy have been received with certain qualifications, parol declarations of a person having title to lands are inadmissible to defeat the title, it being contrary to the statute of frauds and perjuries, which is the magna charta of real property." And, on the same principle, parol evidence of a disclaimer of title to real property is inadmissible. Jackson v. Vosburgh, 7 Johns. 186. Jackson v. Kisselbrach, 10 Johns. 338. 4 Cruise's Dig. 367. Brant v. Livermore, 10 Johns. 358.

So, it has been ruled by the Supreme Court of Pennsylvania, in Lessee of Watson v. Bailey, (1 Binney's Penn. Rep. 470.) that parol declarations of the wife cannot be received to supply a defective acknowledgment.

And in Massachusetts it was held, that the declarations of one of several devisees, that a testator was not of sound mind, were inadmissible to show his insanity. Phelps v. Hartwell, 1 Mass. Rep. 71. The declarations of a grantee cannot be admitted to show that the land included in a conveyance, was not so intended by the parties. Paine v. M'Intire, 1 Mass. Rep. 69.

Before, however, we proceed in this inquiry, it will be: useful to give a short account of the decisions respecting the competency of parties, having an interest in the lands, to give testimony concerning them.

The tenant in possession is not a competent witness to support his landlord's title, inasmuch as he is interested in the event of the suit ;[4] for if the verdict be against his landlord he is liable for the mesne profits, and may also be turned out of possession :(b) nor is his evidence admissible to prove that he, and not the defendant, is really the tenant;[5] for a verdict against such defendant would have the effect of ejecting him (the witness) from the lands, which is an immediate interest, and outweighs the contrary and remoter effect of subjecting himself, by his testimony, to a future action.(c)[6] Upon the principle of interest, also, the person having the inheritance of the lands is not an admissible witness, where two persons, both of whom admit his title, are contending for the possession under different grants from him, (unless, indeed, they claim under grants not rendering rent,) for he is interested, inasmuch as

(c) Doe, d. Jones, v. Wilde, 5

(b) Doe, d. Forster, v. Williams, Cowp. 621. Bourne v. Turner, Stran. Taunt. 183. 632.

[4] A lessor of the plaintiff cannot be a witness in the cause. Ogden, 4 Johns. 140.

Jackson v.

[5] The same point is decided by the Supreme Court of New-York, in Brant v. Dyckman, 1 Johns. Cas. 275. and in Jackson v. Truesdell, 12 Johns. 246.

[6] A person who was a tenant under a devisee, of part of the estate devised, was held to be a competent witness in an action of ejectment brought by the heir against a tenant, who held part of the premises under the testator or devisee, and part under the witness, in order to impeach the validity of the will. Jackson v. Rumsey, 3 Johns. Cas. 234.

he may prefer one tenant to another.(d)[7] In like manner, a person who has mortgaged lands cannot be an evidence.

(d) Fox v. Swann, Styl, 482. Bell v. Harwood, 3 T. R. 308.

[7] The tenant is a competent witness when testifying against his interest. Jackson v. Vredenbrugh, 1 Johns. Rep. 157.

A feme-covert, who had executed a deed with her husband, is a competent witness to prove that the deed was antedated; for, if antedated, an acknowledgment made by her, at any time, would bar her right to dower, and if not acknowledged her signing was no bar. Jackson v. Bard, 4 Johns. 230.

A person having a right of dower in the premises in dispute, is a competent witness, for the recovery in ejectment cannot be given in evidence against her. Jackson v. Vandusen, 5 Johns. 144.

The declarations of a party to an instrument, who may be considered as interested at the time to declare in the particular manner testified to, can in no case be admitted as evidence for any purpose. Clarke v. Waite, 12 Mass. Rep. 439.

So the declarations of a grantor are inadmissible, even after the death of the grantor, and all the subscribing witnesses. Bartlet v. Delprat, 4 Mass. Rep. 702.

Evidence of the declarations of one who has given a deed with warranty, cannot be received to support a title deduced from such person, for the testimony of the person himself to that point would be inadmissible, but the declarations may be received to show in what character such person entered. Jackson v. Vredenbrugh, 1 Johns. 159.

A. gave a deed with warranty to B., and afterwards, by another deed with warranty, conveyed land adjoining to C. In an action in which the question was, whether the bounds of the land granted to B. did not extend so as to include the premises granted to C. A. was held not a competent witness as to the boundaries, for he is interested to support C.'s title. Jackson v. Hallenbach, 2 Johns. 394..

But had he been equally liable to either, in case either had recovered, then he would have been competent. Ilderton v. Atkinson, 7 T. R. 480.

Where A. conveys to B. with warranty, and B. conveys to C. with warranty, A. is a good witness for C. on being released by C., for the release prevents C. from resorting either to A. or B. Jackson v. Root, 18 Johns. 60.

A grantor in a deed which is impeached as fraudulent, on being released by the grantee, is competent to prove, as well as to disprove, the fraud, the objection going only to his credit. Jackson v. Frost, 6 Johns. 135.

The Supreme Court of Massachusetts has decided, that a party to a deed of land, who is not interested, is competent to prove the deed fraudulent or void. Payson, 3 Mass. Rep. 559. and Loker v. Haynes, 11 Mass. Rep

Hill v.