
    The Inhabitants of West Cambridge versus The Inhabitants of Lexington.
    Upon a question whether a deceased person had a settlement, his declaration that he had no deed, but a writing to give him a deed of certain land, was admitted to rebut the presumption arising from long possession by himself and his grantee, that he was seised of an estate in freehold.
    Assumpsit for expenses incurred in the support of three paupers, two of them children and the third a grandchild of Samuel Bemis, from whom their settlement was derived.
    At the trial, before Putnam J., the plaintiffs undertook to prove that Bemis gained a settlement in Lexington, under St. 1789, c. 14, § 1, by being seised of an estate of freehold, &c. They proved that he resided on a parcel of land there for three or four years previous to the 2d of August, 1792, when he made a deed of release and quitclaim of it to Stephen Robbins; that James Robinson formerly owned the same land, and a much larger parcel adjoining, and that he conveyed the larger parcel to Robbins on the 1st of May, 1786, by a deed containing this clause : — “ Reserving about twelve rods of land which I lately sold to Samuel Bemis, as it is now staked out at the southerly corner of the said land.” The plaintiffs further proved, by the testimony of Jacob Buckman, that Buckman sold to Bemis in 1786 about ten rods of land adjoining the twelve rods just mentioned, but the witness could not swear that he ever gave a deed to Bemis. Bemis afterwards put a small house and shop on these two parcels of twelve and ten rods, mostly on the latter. His deed of quitclaim to Robbins included both parcels. Robbins afterwards conveyed the land which he bought of Bemis and of Robinson, and his grantee or his assigns have held the same ever since.
    The defendants contended that Bemis was not seised of an estate of freehold, in the land which he conveyed to Robbins, and offered Lucy Maxwell as a witness to prove it by the declaration of Bemis, who, it was admitted, was deceased The counsel for the plaintiffs objected to such testimony, but it was received. The witness was formerly the wife of Bemis, and lived with him on the land which he conveyed to Robbins. She testified that her husband, Bemis, told her, that “ he had no deed of the land, and would not take any, because he should be obliged to come to her to sign a deed, when he should want to sell the land that he said “ he had bought the land, and had a writing to give him a deed when he should call for it.” The witness never did sign the deed to Robbins.
    The jury found a verdict for the defendants, on the ground that Bemis was not seised of an estate of freehold, but that he had only a contract for the conveyance of such an estate. If the evidence of the declarations of Bemis should not have been admitted, a new trial was to be granted.
    T. Fuller, for the plaintiffs,
    observed that this was not an action between two parties claiming an estate, and that Bemis’s title might be proved by evidence less strict than would be required in that case ; The King v. Butterton, 6 T. R. 554 ; that the mere possession by him and his assigns for more than thirty years, no one claiming adversely, afforded a presumption of an indefeasible estate in him sufficient to support a plea of a non-existing grant; Read v. Brookman, 3 T. R 157, 159 ; Keene v. Deardon, 8 East, 263 ; and if the estate were defeasible, still it might give a settlement, for it might never be defeated. Conway v. Deerfield, 11 Mass. R. 327. The testimony of the witness does not come within any of the exceptions to the general rule, that hearsay evidence is not admissible. The declaration or deposition of a pauper cannot be received to prove his settlement. It will be said that Bemis’s declarations were against his own interest, and though they may seem so at first view, they were not so in fact, for he was telling his wife that she was not entitled to dower in his estate. Probably he had a deed, but did not put it on record lest she should be dowable. But if the evidence was properly admitted, it cannot affect the title acquired by long possession.
    
      Hoar for the defendants.
   Putnam J.,

in giving the opinion of the Court, said the plaintiffs rested the question, whether Bemis was seised of a freehold, upon a presumption arising from long possession by himself and his assigns. This presumption was attempted to be invalidated by evidence of his own declarations, that he had not a deed, but only a writing in which the owner of the land promised to make a deed. The Court are of opinion that the evidence was properly admitted. The declarations of Bemis were in disparagement of his estate. They were not uttered with reference to the present state of things, and they go to show that, at the time, he was without a legal title.

Judgment according to the verdict.  