
    * Humphrey Bartlet versus Mary Delprat and Others.
    The declarations of a supposed grantor m a deed after the date of the deed, as “ that he had never made the deed,” &c., cannot be given in evidence against the party claiming under such deed after the grantor’s death.
    This was a real action, in which Humphrey Bartlet demanded against the tenants possession of certain lands in Newbury, in this county, and was tried upon the general issue of never disseised, before Sewall, J., at the last April term in this county, when a verdict was rendered for the tenants.
    The demandant excepted to certain evidence admitted at the trial, and upon that ground moved for a new trial. From the exceptions filed, it appears that the demandant, to prove the issue on his part, relied upon a supposed deed from his father, Moses Bartlet, deceased, (who was also the father of the tenants, and under whose last will they claim and are seised of the demanded premises,) whereby the same tenements, at a date long before the said will, had been conveyed by Moses, the father, to his son Humphrey, the demandant, to hold to him and his heirs and assigns in fee, from and after the death of his father. To prove this deed and conveyance, the demandant offered a copy from the county registry, with certain fragments of a writing purporting to be remains of the original deed there recorded. This mutilated writing contained the signatures of the grantor and the subscribing witnesses, one of whom was the magistrate who took the acknowledgment of the deed; and it was agreed that all the persons named as witnessing the execution were dead, and had died before the registry of the supposed deed.
    The demandant then gave some evidence to the hand-writing of the signatures, and the copy of the registry and the fragments were permitted to be read and given in evidence to the jury.
    
      The tenants, on their part, gave in evidence the will of the father, Moses Bartlet, some testimony respecting the supposed signatures of the grantor, witnesses, and magistrate, contradictory to the testimony of the demandant’s witnesses on that subject. And it appeared that the demandant had never claimed, or intimated, any title in the demanded premises during*the life [ * 703 ] of his father. The tenants were then permitted to give in evidence certain declarations of the father in his lifetime, subsequent to the date of the supposed deed to the demandant; particularly, when speaking of the demanded premises, and the disposal of his estate among his children, “ that he had never made, and had refused to make, to his son Humphrey a deed of the premises in controversy; ” “ had given him his full share in his estate in another manner,” which he mentioned ; “ and intended the premises in controversy for the son and daughter,” to whom he afterwards devised them, viz., the present tenants.
    The exceptions filed by ’the counsel for the demandant went particularly to the declarations and sayings of the said Moses. The cause stood continued to this term upon the demandant’s motion for a new trial; and now,
    
      Story, in support of the motion,
    argued that the evidence was received, either as the declarations of the grantor, aras hearsay, and that, in either view, it ought to have been rejected.
    1. As the declarations of the grantor. The general rule is, that no party can be admitted as a witness to disprove his own deed, either as fraudulent, forged, or executed by him while insane.  So no party can be admitted to testify in support of his own right, or where he claims an interest.  If, in the case at bar, the grantor had been alive, he could not, consistently with these principles, have been sworn to prove the facts: a fortiori his mere declarations, made without the solemnity of an oath, cannot be received.
    It is true that, in this state, (contrary to the established law in England,) 
       it has been settled that, in criminal trials, the party whose name has been forged may be a witness to prove the forgery, and this from the necessity of the case.  But this rule has never been extended to civil actions.
    The only cases in which the declarations of persons have been admitted as evidence, are either where they were dying * declarations of a party disinterested ; or the declara- [ *704 ] tians of a party charging himself, or restraining his own right thereby; or declarations making part of the res gesta. Of the first class is the case of Wright vs. Little. 
       where the dying declarations of a witness to a deed were admitted to show that the deed was forged ; and the ground was, because, if produced at the trial, he might have been examined to that point, and his declarations only took away the presumption of a due execution of the deed. Of the second class is the case of Barry vs. Babbington,  where the entries of a deceased steward, of money received by him in satisfaction of trespasses committed on a waste of his lord, were admitted, for he became chargeable thereby. So Head vs. Horton, 
       where the entries of deceased town officers, of money received from another town for their proportion of church taxes, were admitted. Thus, also, in Davis vs. Pierce, 
       the declarations of a tenant at the time he was in possession, of whom he held, were admitted. Of the third class is the case of Aveson vs. Kennaird, 
       where the declarations of the wife, as to the state of her health, at a time when a policy was about to be underwritten on her life, were admitted in an action of the’ policy ; for her declarations at the time were a part of the res gesta, and were part of the means by which, then to ascertain her real slate of health.
    But the declarations of a party interested, unless in restraint of his own right, are not evidence in cases of this nature. Therefore in Outram vs. Moorewood, 
       the entries of the deceased owner of land, of money paid by a tenant, were rejected in an-action between third persons claiming a right to dig coals in the land under other persons. So the declarations and depositions of a deceased pauper are not evidence as to his place of settlement. 
    
    [*705] *2. As mere hearsay, the declarations were inadmissible. Lord Kenyon, in Rex vs. Eriswell, before cited, has forcibly expressed our view of the subject. It being a general rule that hearsay is not evidence, “ the evidence offered in this case must be rejected, unless an exception in favor of it has been adopted, in such a manner as to incorporate it into the law of evidence.” “ Evidence should be given under the sanction of an oath legally administered, and in a judicial proceeding between the parties affected by it, or those who stand in privity of estate or interest with them.” The exceptions are of those things which are provable by reputation, such as cases of pedigree, prescription, or custom.  So to prove a right of way, or an estate parcel of a manor,  or the boundaries of a parish. 
    
    But these exceptions are all strictly construed, and are not to be favored. Therefore, though pedigree may be proved by hearsay, the place of birth cannot be.  So neither can a presentation, nor a title to lands.  And as none of these exceptions apply to the case at bar, it must fall within the general rule.
    
      Banister for the tenants.
    We certainly admit the general rule as to hearsay evidence to be as stated. But the exceptions to the rule are very numerous. In the cases, for example, cited from the Term Reports, the declarations were admitted, where no other evidence was to be had. And it seems to be settled that when no evidence is left but the party’s own declarations, they may be received in certain cases.
    In the present case, the grantor and witnesses are all dead ; and it is believed that no case can be produced, where the declarations of one not interested, have been refused ; and the person whose declarations were admitted at the trial of this cause was, in fact, not interested ; they were occasional, accidental, and unbiased. His will, by which he devised part of the land in controversy to the tenants at a date posterior * to that of the [ * 706 ] supposed deed, was no more than his solemn declaration, and no one doubted that it was properly admitted in evidence. 
    
    
      Prescott, on the same side,
    pressed the argument that the last will of the father was nothing but a more solemn declaration that he had never conveyed the land in question ; it rests on the same principles.; the testator declared the same thing at one time by his will, and at other times verbally.
    These declarations come strictly within the exception relating to that species of evidence which comes under the description of a part of the res gestee, and are within the case of Aveson vs. Kinnaird; they were made at the time of the act done, and they ought to go to explain it.
    Unless a witness is interested in the event of the suit, he is competent to give evidence. But it cannot now be objected that Moses Bartlet was interested in the event of this action. No evidence could be obtained in the present case, but a comparison of hand-writing, and the declarations of the party ; and the declarations of a party, though not under oath, may be used to rebut the presumption arising from comparison of hands.  The case referred to was the case of a witness; and it is very clear that Moses Bart-let might have been a witness in this action. His interest, if he had any, was in favor of the demandant, rather than against him. The observations of Lord Mansfield, in the case of Wright vs. Littler & Al., 
       are strongly in point for the tenants.
    
      Story in reply.
    The argument that the declarations prove no more than the will, is not correct; and if it were, they might have weighed materially in the minds of the jury, and the demandant is entitled to a new trial, without any prejudice from them. These declarations were not made at the time of the execution of the deed, but long afterwards, and can in no sense be considered as part of the res gestee.
    
    It is said that the grantor had no interest, and that therefore his declarations were admissible. He claimed a right in the land, and could not have been a competent witness to [*707] * prove his title in an action unless released. The vendor cannot disprove his own deed. If the deposition of Moses Bartlet had been taken in perpetuara memoriam, it could not have been used in this case on account of this objection; and can his naked declarations be better evidence ?
    The case cited from Lord Raymond was a mere nisi prius decision, of no great authority, and, if correct in point of law, is inapplicable to the case at bar. There it was held that a vendor might he a witness to prove that he had no title, because that was swearing against himself. But in the case at bar, the witness must swear to support his own title ; and the case in 5 Term Rep. 578, is decisive that a man claiming an interest cannot be a witness.
    But it is said that these declarations only rebut a presumption, arising from the comparison of hands, that the deed was duly executed. Such declarations are admitted from a subscribing witness alone, and from him only when made-fro extremis; but never from the party executing the deed.
    
      
      
        Peake on Evid. 96, 104, 105.
    
    
      
      
        Cowp. 621. — 1 Mod. 21. — Doug. 139.—5 Term Rep. 578. — Peake on Evid. 120
    
    
      
      
        Peake on Evid. 96.
    
    
      
       3 Mass. Rep. 82
    
    
      
       3 Burr. Rep. 1255, cited by Lord Ellenborough in 6 East's Rep. 195
    
    
      
       4 Term. Rep. 514.
    
    
      
       4 Term Rep. 669.
    
    
      
       2 Term Rep. 53. — Bull. N. P 295.
    
    
      
       6 East's Rep. 188.
    
    
      
       5 Term Rep. 121.
    
    
      
      
        Rex vs. Eriswell, 3 Term Rep. 707. — Rex vs. Nuneham Courtney 1 East s Rep. 373. —Rex vs. Chadderton, 2 East's Rep. 27. — Rex vs. Terryfrystone. 2 East s Rep 54. — Rex vs. Abergwilly, 2 East's Rep. 63. — Rex vs. Erith, 8 East's Rep. 539.
    
    
      
      
        Cowper, 591. — Bull. N. P. 233, 294, 295. — 7 Term Rep. 3, note a.
      
    
    
      
      
        Bull. N. P. 295.
    
    
      
      
        Rex vs. Hammersmith, Peake on Evid. App. 172.
    
    
      
      
        Rex vs. Erith, 8 East’s Rep. 539
    
    
      
      
        Rex vs. Friswell, 3 Term Rep. 707.
    
    
      
      
        Bull. N. P. 290. — 2 Leon. 231 Lord Raym. 1008.
    
    
      
       6 East's Rep. 195
    
    
      
       3 Burr. 1255.
    
   The cause stood continued nisi for advisement, and at the succeeding March term in Suffolk, the opinion of the Court was delivered to the following effect by

Sewall, J.

[After stating the evidence admitted at the trial.] Against this evidence of the father’s declarations the demandant objects, on the ground that they are of the nature of hearsay evidence, and are the words of a party to the supposed deed, who, when speaking them, had an interest in declaring as he did.

The ground of admitting this evidence was, that the witnesses spoke to the fact, that declarations had been made by the father, which declarations were inconsistent with the claim and title of the demandant; were made at a time when no controversy existed respecting the land now in question; and were made by the person occupying the land relative to the nature and extent of his oceu pancy and title.

The evidence objected to has some analogy to a sort of evidence sometimes received, and justified by the authorities; particularly the declarations of tenants respecting their occupancy, when the seisin of the proprietor, or the extent of his boundaries, or of the appendages of his estate, are in * dispute ; [ * 708 ] and one case has been cited, where a conversation of a supposed tenant, respecting her payment of rent, was given in evidence to prove the seisin of the party to a fine, under which a defendant in ejectment claimed title, although it was decided by the court that the tenant herself was an incompetent witness, because liable for the mesne profits. And it may be observed that, generally, declarations of persons not on oath, when admitted as evidence, are taken as facts in themselves, from which presumptions may arise for or against the facts in controversy. And the evidence objected to in the case at bar seems, at the first view, to be competent for the like purpose.

But no case has been found where the declarations of a supposed grantor, or party in an instrument, and who may be considered as interested, at the time, to declare in the particular manner testified to, have been admitted, even for the purpose suggested. And although we find precedents, in controversies respecting last wills, of declarations by the supposed testators received in evidence, yet we find no instance of the declarations of grantors in deeds admitted as evidence, under circumstances in many respects similar.

And upon the whole, although the other facts' appearing in this case leave very little doubt of the justice of the verdict, yet, as the competency of the evidence excepted to is not supported by any ■ of the authorities we have examined, we think the verdict must be set aside, and

A new trial granted.

Note. — At April term, 1809, upon a trial before Sewall, J., a verdict was again found for the tenants, upon which judgment has been rendered. 
      
      
        Walker vs. Broadstock, 1 Esp. Rep. 458. — Auriol & Al. vs. Thomas, 2 Term Rep. 53. — Hindly vs. Rickarby, 5 Esp. Rep. 4.
     
      
      
        Fostor vs. Williams, Cowp. 62.
     
      
      
        Cowp. 52.
     